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.
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.
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.
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.
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.