Attorney General Alberto R. Gonzales has said that the United States government is exploring the possibility of criminally prosecuting the New York Times for publishing classified information: revealing the existence of the National Security Agency surveillance program. Apparently taking its cue from Gonzales, the House Intelligence Committee has held hearings on whether Congress should enact legislation to address this "problem."
By raising the specter of such prosecutions, the Bush administration is threatening a confrontation unprecedented in American history. For more than 215 years, the United States has managed to flourish despite the absence of a single federal prosecution of the press for publishing government secrets. The absence is no accident. It fulfills the promise of the 1st Amendment: "Congress shall make no law … abridging the freedom … of the press."
The 1st Amendment is not an absolute. The press may be held accountable for publishing libel, obscenity, false advertising and the like. As the Supreme Court observed more than 60 years ago, "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
Government secrets are something else entirely. The publication of such information may be extraordinarily valuable to the proper functioning of a self-governing society.
Of course, there are secrets and there are secrets, so in exploring this issue, it is helpful to distinguish three different types.
First, there are "illegitimate" government secrets. In this category, government officials are attempting to shield from public scrutiny their misjudgments, incompetence, misconduct, venality, cupidity, corruption or criminality. In a self-governing society, it is vital that such secrets be exposed. What makes this difficult is that those attempting to cover up such conduct may invoke the claim of official secrecy. We know from historical experience that this happens all too often.
Second, there are "legitimate but newsworthy" secrets. The publication of such secrets may harm national security — and have substantial "value as a step to truth." For example, disclosure that our nuclear power plants are not secure against terrorist attack may have substantial national interest value even though it poses a danger.
Third, there are "legitimate and non-newsworthy" secrets. The public disclosure of such secrets may harm national security — and have only "slight" value. An example would be publication of the fact that the U.S.had broken an enemy's code, in circumstances that serve no appreciable public interest.
In principle, the government should never be able to punish the publication of "illegitimate" secrets, and it should be able to punish the publication of "legitimate and non-newsworthy" secrets. It is the "legitimate but newsworthy" category that is the most difficult to assess because there are both real costs and real benefits from disclosure.
To provide reasonable guidance to the press while limiting the dangers of unchecked prosecutorial discretion, we need clear and straightforward rules. Such rules, by definition, will be imperfect. They will inevitably protect either too much or too little expression and either too much or too little secrecy. To resolve this dilemma, we should look to the lessons of history.
As noted earlier, for more than two centuries the United States has never criminally prosecuted the press for publishing government secrets. Moreover, and equally important, the number of times the press has published non-newsworthy classified information in circumstances that seriously endangered the national interest is small — indeed, it approximates zero. (The one instance most often cited as an example of such a situation involved the publication of information by the Chicago Tribune after the Battle of Midway in 1942 that could have — but apparently did not — alert the Japanese to the fact that we had deciphered their code.)
On reflection, this should not be surprising. Although it is often said that the federal government "leaks like a sieve" and cannot keep classified information confidential, this is so only because the government classifies far too much information. No institution can keep everything secret. But the government prioritizes its secrets, and it is very good at keeping secret our most important ones.
Moreover, on the rare occasion when the press actually gets wind of such information, editors and publishers act responsibly. Not only do they not want to endanger national security, it would be very bad business for them to do so. If the press recklessly published non-newsworthy information that seriously harmed national security, heads would surely roll.
Not surprisingly, then, when the New York Times received the Pentagon Papers from Daniel Ellsberg in 1971, its editors and reporters spent months reviewing and redacting the material to make sure that what it published did not disserve the public interest. And, more recently, when the New York Times learned of the NSA surveillance program, it sat on the story for a year at the request of the Bush administration, even though it very likely involved unlawful conduct by the government.
I do not mean to suggest that the government has no legitimate interest in keeping certain things secret. Surely, it does — but not by threatening to prosecute the press.
The unimpeachable lesson of history is that the American solution to the secrecy dilemma works. That solution is to reconcile the irreconcilable values of government secrecy and government accountability by guaranteeing the press an expansive right to publish and by granting the government a broad power to prohibit leaks. This solution may be unruly, but it has served our nation well.