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A Hard Case

Clearing the Air

by Daniel Schorr
Houghton Mifflin, 333 pp., $11.95

Daniel Schorr, certain of his peers have always suspected, was the wrong guy in the right place; doing some necessary things, even when he made an ass of himself in the process. Who, after all, can dislike a man called “Killer Schorr” by a professional killer? Schorr became indispensable because so many unpalatable people put him high on their enemies lists.

I remember covering the Church committee for this publication. Schorr came in late one afternoon, bustled past the rest of us to his front (network) seat in the camera’s eye, and ostentatiously opened his large bundle of office mail. Nervy, but natural. It is even nervier of him to open his book protesting that his journalistic ideal was always to remain “the untouched observer, seeing the whole picture because I was not in the picture…. The notion of being the invisible stranger always appealed to me.”

Schorr put himself usefully in the Watergate picture because he was the TV reporter who functioned most like a good newspaper reporter (instead of a photogenic reader of lines, a martinihour idol). Dan Rather asked questions Nixon did not want to hear in the White House; but Schorr used shoe leather as well as abrasiveness. Rather was allowed to mutter pieties on the screen after Nixon’s resignation (he found it a “majestic” speech) while Schorr was kept off the air (a matter that rankled, and helped push him toward later indiscretions).

CBS tried to cool off its aggressively hot items, Rather and Schorr, after Watergate—part of that customer-oriented network’s caution. But Schorr grabbed the Church committee and rode it to the revelations of CIA criminality that made Richard Helms, that gentlemanly planner of assassinations, call Schorr a verbal gunman. Schorr deserved his spot in the bright lights, one he so obviously relished. Among other things, he was thumbing his nose at his employers, a spectacle almost always edifying.

What happened, then, so fast? Martyrdom, as this book tries tactfully to suggest? (It is always hard to waft the incense oneself.) Sneak thievery, as his employers obviously concluded? Treason, as certain congressional superpatriots tried to claim? Empty showboating, as even his defenders admitted sotto voce?

The facts are not in dispute. The puzzle is how such different interpretations can arise from them. Schorr asserts or confirms or admits (as the case may be) these basic points:

1) After covering CIA attempts to suppress or censor the Senate (Church) intelligence report, Schorr got a copy of the censored and then suppressed House (Pike) intelligence report. An indirect tip from William Safire made him realize The New York Times did not have the whole report—John Crewdson had just been allowed to read and take notes on a copy of it. Competitive juices started flowing. Schorr writes that he told his wife: “I may just have the only copy of this goddam document in the whole free world.” Note that he defines the free world as the press; but what excites him is doing in a rival. Critics of “the media” usually underestimate the sheer force of internal competition in generating broadly useful information.

2) Schorr tried to convince CBS superiors of the value to be placed on that document he four times flashed on the screen, titillating the audience with knowledge that it was a suppressed document he proudly held (and held out) before them. CBS was disappointing in its lack of excitement: Schorr had already reported all the new or intriguing things in the document. What was left for a network to do? Read it, dull page after page, at the viewer? No, Schorr said: publish it as a book. CBS had done this with other “hot” documents, including the Watergate hearings, to which Schorr himself wrote an introduction.

3) But CBS showed no interest in it as a book project. Schorr, frustrated at the possession of a scoop that bored his own people, told CBS he had given it “first refusal” (and did it so casually that no one seems to have caught the remark). Then he refrained from letting his employers know he was using this technical fulfillment of an author’s option clause, to deal freely with publishers. He says he acted thus to give CBS “plausible deniability” if anyone later came looking for sources of the leak from the House committee. (Not for nothing did Schorr study Nixon’s White House.)

4) Free now in his own mind to publish the report with a commercial house, he had an agent try to peddle it, promising introduction and notes by Schorr. But there were no takers. A setback, that. Schorr assumed CBS was intimidated by licensing threats, or slow to take up the book side of the opportunity. His “scoop” was getting the ultimate rebuke—yawns.

5) But his agent said he had one interested buyer—Clay Felker, who wanted to run the report in either New York or The Village Voice. He wouldn’t say which, and Schorr pretends not to have known which; but space requirements made the Voice the only plausible channel. This development put Schorr in the position of giving the report to a rival news organization—something quite different from publication in a book. Schorr betrayed his knowledge of the changed rules by taking his name off the project at this point, asking his agent and Felker to hold his identity “in confidence.”

6) When the report appeared in the Voice, Schorr pretended ignorance of its source, though this involved him in a) permitting, if not actually encouraging, suspicion that Lesley Stahl had peddled the document “out of house,” and b) misleading fellow reporters who asked him about the subject. (A CBS official later told him Ms. Stahl might have resigned if Schorr had not been fired.)

7) Only when he found out that his cover was blown by the Reporters’ Committee did Schorr hire a lawyer (Joseph Califano) and write a statement on his role in the affair.

There are clearly some questionable things in that course of action. But it was hard to question them at the time, because the CIA had tried to suppress the document and Schorr was on the side of those fighting government secrecy. Further, the House committee tried to make Schorr reveal who gave him the document—so his appearance before the committee dwelt on the right to protect sources, a mom-and-apple-pie issue for journalists. Questions were conveniently diverted from what he did with the document to how he got it.

In his book, Schorr cannot so neatly limit the issues; so he extends them in other directions, blaming his employers and colleagues (rather than the government) for a wide range of offenses. The problem is no longer secrecy in government—he possessed the report after all. Now he shifts over to the topic of corporate pusillanimity—though he had the report, CBS did not have the guts to print it. Here, too, even his critics must agree with much of his criticism. It is useful to have the charges against William Paley investigated, with some elements given independent confirmation. Paley had CIA ties; he had contributed to Republican campaigns; he clearly tried to temper network criticism of Nixon’s regime, and apparently succeeded. Schorr, the man of the enemies list, performs here as we expect and want him to.

We are obviously not supposed to notice—and no reviewer has so far noticed—that none of the charges Schorr brings against the network has anything to do with his case. The nexus he implies does not bear scrutiny. He is arguing that he had to get his document out, to a public that needed and wanted it, because the government had scared CBS into suppressing it. But there is no evidence for any part of that assertion—not for the public’s needing or wanting it, not for the government scaring CBS in this case, and not for CBS suppressing the document. Quite the contrary: Schorr admits in a written memo to his superiors that the network publicized the report’s “main highlights.” (Schorr is resolutely pleonastic throughout the book.) The CBS failure to arrange for book publication was a judgment on the report’s commercial value, one confirmed by all the other houses Schorr’s agent approached.

Or were all these houses cowed by government pressure, just as CBS had been? They could not be cowed in quite the same way, since Schorr argues that the licensing process makes TV peculiarly vulnerable. Still, he tries to blame the lack of response to his treasure on fear of the authorities: “They [the book publishers] were afraid of spilling some national security secret that would bring them adverse publicity or trouble with the law.” Yet Schorr has admitted all the “big” secrets of the report were already published, by himself and others. What could be added by issuing the whole report? Some confirming detail, of course—though no one seemed to be questioning the accuracy of the things reported.

The only other thing to be demonstrated by publication was that Schorr possessed the report—though he had made that clear by holding it up four times on the air. Admittedly, getting full documents is a source of pride for journalists. It not only signals access; it gives one a hole card for verification and litigation purposes. Editors like that. It is a journalistic security blanket. But Schorr seems to have inflated rather hysterically the importance of possessing that document (alone in the free world). He saw himself as another Daniel Ellsberg, fighting to get his vital information out.

His train of serious misjudgments begins with the fact that the Pike report was not the Pentagon Papers. Even the Pentagon Papers had little that was new to close students of the Vietnam war. What it did was confirm two things—that the government not only did not have any “secret information” justifying the war, but did have reports verifying criticisms of the war. Besides that, the Pentagon Papers stood alone in their category, and could affect an ongoing war that was the major item on the national agenda. It is no wonder Ellsberg came to exaggerate the importance of his admittedly important papers. That importance could be gauged by the fact that he ran larger legal risks than Schorr would run.

The Pike report was one of a series of revelations, official and semi-official, of past CIA misdeeds which even the agency was then forswearing. Its main points were out and verified. It was reasonable for CBS to conclude that the report was not worth separate book publication. Schorr never claims the network tried to suppress dissemination of its substance in the normal television channels. Optimum dissemination in his eyes (but not in those of any book publisher he could find) called for a treatment different from TV’s rather spotty coverage. But that came from the inbuilt limits of his medium (compensated for by other things, like his role in the camera’s line of vision, the very thing that was prodding him on).

In other words, it was no longer a question of government suppression or of network cowardice. Instead Schorr was facing a problem journalists encounter all the time, possession of a juicy bit of information they cannot, for some reason, use—the publisher will not carry it for legal reasons, or for reasons of taste; from different judgments of newsworthiness, fear of an advertiser’s wrath, or whatever. In those circumstances, a free-lance writer can try to use the material elsewhere; but the writer contracted to one outlet must normally save the item for dinner table chatter, for bargaining with others to find new things, or for the memoirs he hopes to write someday when sources and contract are no longer binding.

Despite the efforts to make his disquietude a touchstone of the First Amendment, Schorr was merely facing this common problem—he had an item he thought valuable but could not peddle. Commercial channels of the more obvious sort did not want it, mainly for commercial reasons. He knew the titillation value of publishing in the Voice would rest on the fact that it was published, not on what was in it. (Quick now, readers, how many of you really read the report itself, not just the “highlights” already available when the Voice appeared?) What Schorr really needed was a “vanity publisher.” Instead he put his job on the line—and that of Lesley Stahl—in order to equate his vanity with liberty of the press.

Why bother, then, with such a minor episode puffed way beyond its intrinsic interest? Because, as I say, Schorr is often usefully wrong, a contaminated conduit for clarifying waters. I think there are three important things to learn from his action, along with the subsequent attention given it and his attempts at justification.

First, journalists should begin to question their automatic response to liberal shibboleths. Simply by condemning government secrecy and claiming protection of sources, Schorr diverted attention from his own secrecy, his deception of employers, colleagues, and friends. Even “protection of sources” cannot be an absolute norm. Schorr shows us how that motto can be used to protect oneself rather than one’s sources.

But the matter deserves broader consideration than his own case calls for. Protection of sources can expose a reporter to manipulation by officials. Nixon’s White House was the principal initiator of leaks—e.g., Colson’s dribbled information and misinformation on sundry Kennedys and Senator Tydings. Today’s leaker may be tomorrow’s suppressor—does he deserve unfailing protection? Kissinger, as traveling “backgrounder,” was Giapetto to the glamorous foreground Pinocchio—and no one was supposed to notice the strings. The Washington Post and others have come out against background stories for that reason. It is one thing to protect the lonely “whistle blower” in government who lets the public find out what it should have known through normal channels. It is another to abet bureaucratic infighters of the sort who speak to us regularly through the Evans and Novak column. The withholding of information about criminal acts also calls for reassessment—if reporters claim a civic justification (public enlightenment), how can they forswear a citizen’s duty to the law? Twinned assumptions—that secrecy in government is almost never defensible, but that secrecy in the press almost always is—led Schorr to make certain mistakes and led others to defend him. Yet a free press devoted to the ideal of “openness” should question its own self-protective inclinations toward secrecy.

Second, Schorr reminds us in ways he did not intend of the uses and possible abuses of television “personality.” Schorr is rightly contemptuous of TV “anchorpeople” who are just pretty faces. Yet his own story acquired national importance, in part, because it was a series of things happening to him, to the man known (whether for fear or hatred or admiration) to people as a “character” in the drama of hearing rooms and the photographed corridors of Congress—the man President Nixon attacked and Richard Helms cursed.

Third, the fierce possessiveness Schorr displayed over his document raises all the difficult old questions about trying to own information. It is ironic that Schorr calls his anti-Paley chapter “The Sole Proprietor,” attacking the chairman’s control of news as if it belonged to him. Schorr writes, “My conviction remained that the Pike report belonged to the public.” Then why did he try to sell it as his? More to the point, why did he try to keep it from competitors?

Journalists try to beat each other to any story—a healthy thing, since it makes for quickest release to the public. And once a story is out, others pick it up. The right desired is not one of monopoly but of first dissemination, an ephemeral honor reinforcing the united commitment to fast release. But the pride stimulated in this chase can turn exclusivist. After all, by flipping to the front of Mr. Schorr’s book, one finds the expectable (indeed inevitable) staking out of owned verbal turf:

Copyright © 1977 by Daniel Schorr All rights reserved. No part of this work may be transmitted in any form by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, without permission in writing from the publisher.

Expectable, and inevitable; but still an odd flag to fly at the outset in a book that claims the public has a right to information, which does not “belong” to individuals the way other commodities do. (Jefferson was opposed not only to copyrights but to patents, and he was an inventor.)

Reconciling the right to one’s views as marketable and the public’s right to the best information is a problem not yet confronted in any very thoughtful way. At the very time Schorr was trying to market “his” document in the name of the people, CBS was engaged in internal debate over the norms for “buying news” from Haldeman and others. Now, in one sense, news is bought—the bigger dispensers have a better chance to get at the sources because of their investment in an elaborate dispensing apparatus: people are readier to talk to CBS than to Liberation News Service. Is the network just fooling itself, then, when it claims it has not already bought news by its prior investment (among other things in the time of Daniel Schorr)? Or, if there is a distinction between hiring Schorr and semi-hiring Haldeman, where does one draw the line? Schorr seemed, at the crunch, no more loyal or candid with his employers than Haldeman would be. These are questions Schorr’s example raises; but not ones we can expect him to address himself. His apologetic purpose rules them out.

Still, the job must be done, and Schorr reminds us of its urgency. One way to assert the public’s right to know is to consider that right precisely as an employer’s prerogative. Presidential papers—treated in the past as private property withholdable, deductible, sellable—should belong to the people because the papers were gathered, dictated, typed, researched, reproduced, preserved out of tax moneys not considered presidential “salary” direct or indirect. The same is true of documents called for through the Freedom of Information Act. On the other hand, public ownership of the air waves leads to the feared government licensing power. Schorr’s case poses complex problems because he acquired the Pike report using the prestige, paid time, and outlets of his employers at CBS, which is licensed to use the public air waves.

Some laws distinguish physical possession of papers and the copyright for quoting purposes. But this parallel does not favor Schorr, since right to information goes better with the power to quote than with physical possession and literal reproduction. CBS reported, paraphrased, and even quoted the suppressed report, without feeling any duty to print the whole text.

These are only some of the questions suggested by a second look at the Schorr case—all of which deserve a level of debate and reflection Schorr cannot supply. Hard cases may make bad law; but they can stimulate the most useful speculation. That is why Schorr’s aberrations can help us look to and correct the norm. The wrong man, even in the wrong place, can steer us accidentally toward the right questions.

Letters

Schorr’s Case April 20, 1978

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