January 02, 2006
Where Have All the Injunctions Gone?
January 2, 2006 10:18 AM
Last summer, I wondered at how few legal clashes there have been between the federal government and the media since 9/11 regarding the publication of sensitive material. I have not heard of the Bush Administration's applying for any injunctions to prevent information or opinion being disseminated, a track record that might surprise those of us who were superficially worried about attempts at gagging after a White House press secretary's infamous admonition that Americans "need to watch what they say." The major controversy regarding the press and national security has dealt with reporters who were trying to protect their Administration sources.
Instead, there appears to be more of a reliance on self-policing. For example, in its first article breaking the story of the NSA's warrantless spying, the New York Times mentioned that the Administration had asked the paper not to publish; the NYT had sat on the story for a year while confirming it; and some information had been voluntarily redacted. This was a pretty unsatisfying account of the decision-making process, as the Public Editor says. Judging by the reaction from President Bush and his supporters to the article's publication, however, an injunction ought to have been sought: the disclosure of the information was "a shameful act" and "the revelations in the Times help the terrorists."
Even New York Times v. U.S. decision was a split mess, and the Pentagon Papers -- documenting missteps in a war nearly over -- were much less obviously a potential threat to security than information about how the government detects current terrorist activity, so publication of the latter would seem to have a better chance of capturing more than three votes on the Supreme Court. Especially if Bush had asked specifically for an injunctive power in the PATRIOT Act, one of the objections that two justices in the NYT v. U.S. majority had would be eliminated. I'm puzzled as to why the government isn't using its power of injunction to prevent the media from directly undermining (as opposed to the kind of subtle undermining that Nixon's people feared would occur with the Pentagon Papers' evidence of how badly Fearless Leaders can screw up) the war on terrorism.
Obtaining injunctive relief in a First Amendment speech/press clause protection situation is quite difficult. Perhaps George W's Administration recognized this, including perhaps the anticipated loss of even more conservative support. I understand Abraham Lincoln fairly promptly after suspending habeas corpus took the matter to Congress. George W has chosen not to follow. Keep in mind that a cheerleader keeps on with his cheerleading even when her team is hopelessly behind and that George W only minored in history while at Yale.
As Shag points out, a lawsuit seeking "prior restraint" faces an extremely high burden, even if the material in question is indisputably classified. Also, the Administration may have been concerned that a suit, even one initiated under seal, would become another source of leaks. After all, if one is concerned that the NYT would not respect the classified status of the underlying information, then one might not rely upon the NYT to respect a court's seal, either.
I think there's a fairly clear post-Pentagon Papers consensus nowadays: Unless there is a demonstrable proximate danger to American lives (i.e., military or covert intelligence), prior restraint will not be granted.
Remember, both the media and leakers can still be punished after the fact, just not enjoined before the fact.
Certainly the government seems to be pursuing leakers, but there doesn't appear to be any action against the people to whom they leak (which follows the logic of the civil case Bartnicki v. Vopper, I suppose). I understand the high standard placed on attempts at prior restraint, but am surprised that the Bush Administration does not even try to prevent publication of material that they claim in public rhetoric to be materially damaging to our efforts against terrorism. The Pentagon Papers case was not really helpful in setting a precedent for a situation in which the government is making a plausible case for damage to current national security.
Lincoln did not ask Congress to legislate a suspension of habeas until Taney ruled such a suspension to be an Article I power and thus out of Lincoln's hands.