Tony Mauro, left, with Judge James E. Baker.
WASHINGTON — In the fight to protect national security, government officials may want to turn to an unlikely ally — the press, a military judge said last week.
In a rare public appearance by a sitting judge of the U.S. Court of Appeals for the Armed Forces, Judge James E. Baker told attendees of the National FOI Day Conference that journalists often can help the government convey essential information.
“We may like the process, from a First Amendment values concept, of having reporters embedded with military units or having free access to military operations, but they’re also very important when it comes time to articulate and explain what did and did not happen on the ground,” Baker said.
“If you’re in a contest, a strategic communications contest against jihadist extremists who are very effective with the propaganda machine, it is an effective national security tool to have a journalist report the facts as they see it on the ground, to serve as a witness to history," Baker said. "That can be a very valuable thing, not just from a First Amendment perspective but also from a national-security perspective.”
Baker was interviewed by journalist Tony Mauro during the March 14 program “Secrecy in an Open Society” about Baker's recent book In the Common Defense: National Security Law for Perilous Times.
Baker said he wrote the book for three reasons: (1) “to provide an accessible text for an informed audience … to understand national-security law so that they might better play their role of testing the government and appraising the government’s conduct, not just to make sure it’s lawful but also to make sure it’s effective”; (2) to explain the role of law in national security; and (3) to inspire national-security lawyers and “the people who will practice in this field to do so with moral courage.”
Expanding on the third purpose, Baker said: “In this area more than any other area I know, the law entirely depends on the moral integrity of the people who wield it because so much is secret.”
Mauro asked Baker what happens when that moral integrity is missing. For example, what if there’s a rogue or unlawful operation that the press learns about — should the news media report it?
In that scenario, Baker said, both the press and the government must ask themselves some serious questions.
“The press person, hopefully because it’s their mission, will default to the public interest … in knowing something. But through a process of introspection they should also ask, 'Are there other public interests involved here, like the safety of the people who may be involved?'” he said. “Rogue or not, if there are U.S. persons on the ground or civilians on the ground that may be harmed by this disclosure, that doesn’t mean necessarily that the public interest is in immediate disclosure. It may be in delayed disclosure.”
Baker said there also should be a review process where an editor or ombudsman examines the information to determine if it should be published. In addition, he said, the journalist should give “the government a chance to either respond or mitigate.”
On the government side, Baker said, officials need to determine if they have given journalists enough information to evaluate the situation properly.
The government has to ask itself the question, "Have we been as candid as we can in disclosing the context, which may require us to say more than we’re comfortable saying in order to allow the reporter to understand how that story fits into a larger construct, especially if we’re saying it’s a secret and you’re going to do great harm?" Baker said. "Have we articulated as well as we can what that harm is?”
Government officials often do a poor job of communicating the decisions they have made and the reasons for these decisions, Baker said. Many times this lack of communication occurs because officials have an aversion to talking to reporters — a view, Baker said, he once shared.
“(As) a judge, a national-security guy and a lawyer, the last person I ever wanted to talk to was a reporter. And I was a lousy interview on the few occasions I was ordered to talk to a reporter; I stayed within those talking points,” he said.
Baker said he had changed his opinion and now welcomes the chance to speak to journalists.
“The answer when I get asked to do the interview next time is not ‘Do I have to?’ (Instead) it’s ‘You bet!’ Because this is an opportunity to communicate to a wider audience and to develop the skill set to do so and to get comfortable with reporters and (for) reporters (to) get comfortable with me so they trust me next time I have to say, ‘No, this really is the secret. Can you avoid that?’”