Gonzalez and the Press

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.

Comments

[saul levmore]

Two quick comments. First, assuming, as your post implies, I think, that the press is occasionally responsible when it holds back some newsworthy infomation, the question is why it does so. Perhaps because it is populated with good and cautious citizens. But perhaps because it fears prosecution (despite the history of none) - in which case the optimal level of prosecution is very low but not zero. Put differently, there are very few areas, and none comes to mind, in which we are satisifed that we will get appropriate behavior without any fear of prosecution or liability, so why should we do so here?

Second, I would not think you would hesitate to encourage prosecution for the publication of other sorts of government secrets, though the question might be whether it ought to be the press that is prosecuted. If someone with an access to government labor statistics or agricultural reports leaks information in order to profit from the stock market (or other markets), we do not hesitate to prosecute the trader or perhaps the leaker. Would it be so wrong to prosecute a stock market columnist who used this sort of government information? Perhaps the argument needs to be restricted to certain kinds of government secrets.

[Eh Nonymous]

I know you don't do the Post Chaining thing, but could you at least link to the prior, nearly identical post of your Committee memo, which covered the same ground and drew the same kind of comments this one will?

I linked it under my URL, and its title is "Classified Information and the Press"

[gstone]

Saul,
With respect to your first point, we rely not just on the "goodness" of publishers, but on their recognition that if they publish information that gravely harms the national security without justification they're likely to be out of business rather quickly. That's a pretty potent incentive, especially because their conduct is, by definition, completely public. Moreover, the First Amendment is filled with areas where we don't punish what might otherwise be punishable speech because when all factors are considered we get a "better" overall outcome. For example, this is precisely what the overbreadth doctrine is about. In other situations, we punish people only if they had specific intent -- negligence or even recklessness is insufficient. Much of this is about "chilling effect" -- the concern that because speakers don't capture the full benefit of their speech they will too readily be deterred from speaking.
As for the second point, as you suggest, not all speech is equally valuable under the First Amendment. But even in your example, I would limit criminal punishment to the leaker rather than the columnist.

[Bob]

"By raising the specter of such prosecutions..."

You mean persecutions.

"The 1st Amendment is not an absolute. The press may be held accountable for publishing libel, obscenity, false advertising and the like."

Yes, but not by the government. The damaged party (an individual or a corporation...you can't libel a government) should sue for redress.

"Government secrets are something else entirely."

Are they? How? I suspect "government secrets" are merely a convenience for those in power to cover up wrongdoings. If an act is right, they wouldn't need to keep it a secret...and they wouldn't.

All this categorizing of secrets is poppycock. It just creates a legal quagmire. Especially, because we all know, it will be the government who decides what is legitimate and what isn't. And if that were to be the case, then the press would have to ask permission from the government to publish anything. Why? Because how does the press know what is or isn't a secret? Catch-22.

If the government can't keep its secrets, that's their problem. The press should publish everything it can get its hands on. Why should the press be punished for the governments failure to keep their own secrets? The government should only be allowed to punish the leaker, if they can. The press must remain off-limits to the govt.

[Kimball Corson]

For a responsible press, this threat of prosecution is basically one of petty retaliation for disclosure of what I will broadly call cover-ups. That is certainly ignoble, but it is also a compromise on the public’s right to know. It is undemocratic as well because it protects against transparency in government where transparency is needed most. For an irresponsible press, an argument of sorts can be made that prosecution of some type might make sense for legitimate and non-newsworthy secrets, but not for the rest. The problem then would become the chilling effect of possible miscategorization by a paper. For that reason and as Geof suggests, this is an area that is probably best left be.

[Kimball Corson]

How about this instead: deem it legally treasonous to take any action in any capacity that even arguably infringes upon or circumscribes any of our Bill of Rights.

As it now stands, our Bill of Rights is largely defenseless against governmental efforts to compromise it so government can do what the Bill precludes. Charges of treason could afford the Bill with a suit of armor and right this imbalance. Gonzales came up with the right idea -- treason-- only his proposal applies the doctrine in the wrong direction.