Classified Information and the Press

The following is an excerpt from a memo I submitted to the House Permanent Select Committee on Intelligence for its pending consideration of restrictions on the press's publication of unauthorized disclosures of classified information:

A central question before the Committee is this: Should the United States criminally punish the press for publishing classified information? This inquiry poses a prospect unprecedented in American history. For more than 215 years, the United Stateshas managed to flourish in the absence of any federal legislation directly prohibiting the press from publishing government secrets. The absence of such legislation is no accident. It clearly fulfills the promise of the First Amendment: “Congress shall make no law . . . abridging the freedom . . . of the press.”

 The First 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 sixty years ago, “such utterances are no essential part of any exposition of ideas, and are of such slight 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.”[1]

 But government secrets are something else entirely. There is nothing inherent about government secrets that would make their publication of only “slight value as a step to truth.” To the contrary, the publication of government secrets may be extraordinarily valuable to the proper functioning of a self-governing society. Indeed, the very notion that the United Stateswould punish the press for publishing government secrets seems incompatible with the most fundamental tenets of public accountability.

 But, of course, there are secrets and there are secrets, and in exploring this matter it may be helpful to distinguish three different types of secrets. First, there are what we might call “illegitimate” government secrets. In this category of secrets, government officials are attempting to shield from public scrutiny their own misjudgments, incompetence, misconduct, venality, cupidity, corruption, or criminality. In a self-governing society, it is vital that such secrets must be exposed. What makes this difficult is that government officials attempting to maintain such secrets may invoke the claim of national security as a cover. We know from historical experience that this happens all-too-often.

 Second, there are “legitimate but newsworthy” government secrets. The publication of such a secret may harm the national security and have substantial “value as a step to truth.” For example, the publication of secret information that Army rifles routinely misfire might be both harmful and beneficial to the national interest. Or the publication of secret information that the security of our nuclear power plants is inadequate might both endanger and further the national interest. In such situations, it is often difficult to know which effect predominates.

 Third, there are “legitimate and non-newsworthy” government secrets. The public disclosure of such secrets may harm the national security and have only “slight value as a step to truth.” An example would be a publication disclosing that the United States has broken the enemy’s code, in circumstances in which this disclosure furthers no legitimate public interest. Of course, whether any particular publication furthers a legitimate public interest is commonly a matter of dispute, so it may be easier to state this category in the abstract than to apply it in practice.

 In principle, the government should never be able to punish the publication of “illegitimate” secrets and should be able to punish the publication of “legitimate and non-newsworthy” secrets. The middle category, which is no doubt the largest, is the most difficult to assess because there are both real costs and real benefits to disclosure. A central challenge to a free society is to distinguish wisely among these three types of secrets. Particularly in the context of criminal prosecutions of the press, the problems of complexity and vagueness can be daunting.

 To provide reasonable guidance to the press, avoid chilling the publication of information that is important to the public interest, and limit the dangers of unchecked prosecutorial discretion, we need clear, simple, straightforward rules. Such rules, by definition, will be imperfect. They will inevitably protect either too much or too little expression, and they will inevitably protect either too much or too little secrecy. This is a dilemma.

 To resolve this dilemma we should look to the lessons of history. As noted earlier, for more than two centuries the United States has opted not to prohibit the press to publish government secrets. Indeed, in the entire history of the United States the federal government has never criminally prosecuted the press for publishing government secrets. Perhaps surprisingly, this has been an extraordinarily successful solution.

At one point in our history Congress seriously entertained the idea of enacting legislation that would have prohibited such publications. It is instructive to recall how Congress addressed the question. Only three weeks after it voted a formal declaration of war under Article I, section 8 of the Constitution, Congress began debate on what would become the Espionage Act of 1917. Although the Act was directed primarily at espionage, the original bill included what we can call the “press” provision. This provision would have made it unlawful in time of war for the press to publish any information that the president declared to be “of such character that it is or might be useful to the enemy.” The proposed provision added that “nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government.” Not surprisingly, the press provision provoked heated debate.

When the provision was first presented to the House of Representatives on April 30, 1917, Representative Edwin Webb of North Carolina defended it on the ground that, “in time of war, while men are giving up their sons and while people are giving up their money,” the press should be willing to give up its right to publish what the president “thinks would be hurtful to the United States and helpful to the enemy.” Representative Andrew J. Volstead of Minnesota asked pointedly how the nation would feel if American troops were “sent to the bottom of the sea as a result of information” published by the press because Congress had failed to enact the provision.

Opposition to the provision was fierce. Representative Simeon Fess of Ohio warned that “in time of war we are apt to do things” we should not do. Republican Senator Henry Cabot Lodge of Massachusetts expressed concern that the government officials who would administer this provision would use their authority to stifle legitimate criticism of the government. Representative Medill McCormick of Illinois added that he was appalled to think that if an epidemic were to break out in the Army the proposed provision might empower the president to prohibit the press from “drawing public attention to the condition of the troops.”

In response, proponents of the provision invoked the clause guaranteeing that “nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government.” Opponents replied that it was impossible effectively to criticize the policies of the government without discussing the information on which the criticism was based.

When it began to appear that the press provision would go down to defeat, President Wilson made a personal appeal to Congress, stating that the provision was “absolutely necessary to the public safety.” Members of Congress were unpersuaded. On May 31, 1917, the House of Representatives defeated the provision by a vote of 184 to 144, with 36 Democrats joining the Republican opposition. This ended consideration of the press provision for the duration of the war.[2]

With the benefit of hindsight, it is clear that this was a remarkable and pivotal victory for American freedom. As it turned out, there was not a single instance during World War I, and not a single instance thereafter, in which the press’s publication of a “legitimate but newsworthy” government secret seriously harmed the national interest. The lesson of this experience is that the best course for the United States is to refrain from threatening to criminally punish the press for publishing “legitimate but newsworthy” government secrets. Although one can imagine hypothetical circumstances in which such a publication might seriously harm the national security, 215 years of experience has demonstrated that such legislation is unnecessary, and would do more harm than good.

As the Members of Congress understood in 1917, for the United States government to wield the power to prosecute the press for such disclosures would give government officials a dangerous lever with which to intimidate and threaten the press. To grant government officials such power would seriously jeopardize the ability and willingness of the press to expose to public scrutiny what should be exposed and would undermine the press’s vital role in our constitutional system. In 1917, Congress made a wise and courageous judgment. Nothing that has happened in the intervening nine decades warrants a different judgment today.

But that still leaves the third category of government secrets – those that are “legitimate and non-newsworthy.” The publication of these secrets could harm the national interest without contributing meaningfully to informed public debate. In principle, then, the government should be able to prohibit the publication of such secrets. The problem, though, is that it is not easy even to “know such secrets when we see them.” The very concept of “non-newsworthy” is elusive. This is a serious difficulty, but it is not necessarily insurmountable. It should be possible reasonably to limit the uncertainty by clearly and narrowly defining what is prohibited.

It might be useful to work backwards from the paradigm example of the government secret that should not be published. Suppose a newspaper publishes the fact that the United States has broken the al Qaeda code, and as a consequence the terrorists change their cipher. Suppose also that there is no legitimate public interest in the publication of this information. That is, the publication of this information does not reveal any plausible illegality, incompetence, venality, or misjudgment by government officials. In such circumstances, it hardly seems unreasonable to punish the newspaper for its action.

This example suggests two factors that may help define the scope of a constitutionally permissible criminal prohibition. First, the newspaper knew or was reckless in not knowing that the publication would create a clear and imminent danger of a grave harm to the national security. Second, the newspaper knew or was reckless in not knowing that the publication of this information served no legitimate public interest.

With these two elements in place, it is possible to craft a narrowly drawn law that addresses the most serious dangers to the national security, while at the same time protecting the freedom of the press and the compelling national interest in free and robust discussion of matters of public concern.

Would it be good public policy to enact such a law? On balance, I think not. Once again, I return to the lessons of history. Even if such a law is constitutional, it is neither necessary nor wise. In more than two centuries of experience, the problem addressed by this “law” has never actually arisen. This would be a law in search of a problem. This is never a sound basis for legislation, and certainly not when dealing with a freedom as precious as the freedom of the press. As a matter of wise public policy, Congress had it right in 1917. Even a law drawn as carefully as the one I have defined would cause more mischief than it is worth. Some things are simply best left alone.

 I do not mean to suggest, by the way, that the government has no legitimate interest in keeping military secrets. Certainly, it does. But the way to protect this interest is not by prosecuting the press. It is, rather, by refining the government classification system to focus on matters that seriously threaten the national security and then preserving confidentiality by punishing (in a constitutionally permissible manner) government employees who unlawfully leak such information.

As the Yale constitutional scholar Alexander Bickel once observed, this is surely a “disorderly situation,” but it is the best we can do. If we give the government too much power to punish the press, we risk too great a sacrifice of public deliberation; if we give the government too little power to control secrecy “at the source,” we risk too great a sacrifice of secrecy.[3] The American solution has been to reconcile the irreconcilable values of secrecy and freedom by guaranteeing an expansive right of the press to publish and a strong power of the government to prohibit leaks. The American solution is imperfect and unruly, but it has served our nation well for more than two hundred years.

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[1] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

[2] On the debate over the press provision, see Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism 146-149 (W. W. Norton 2004). It is sometimes suggested that another provision of the 1917 Espionage did prohibit some press publications, but this interpretation of that provision is erroneous, particularly when the act as a whole is read in light of the debate over the press provision. See Geoffrey R. Stone, Scared of Scoops, New York Times (May 8, 2006).

[3] Alexander Bickel, The Morality of Consent 79-82 (Yale University Press 1975).

Comments

[Bob]

And who would decide which secrets are allowed to be reported? The government? How convenient.

Secrets are useful only when one is doing something wrong. When what one is doing is right, no one keeps it a secret. I am for expossing all secrets, i.e. exposing all wrongs.

[Dave]

Categorizing secrets is rediculous. Who decides if a secret is “legitimate" or "non-newsworthy?” The press should decide this, not the government.

You said, "In principle, then, the government should be able to prohibit the publication of such secrets."

This is wrong. Instead, the government should keep its' secrets secret. Why punish the press for its own failings? When the press publishes a secret, the government can now go after the leak source. That would be legal. It's the source of the leak that has committed the crime, not the press.

You said, "It should be possible reasonably to limit the uncertainty by clearly and narrowly defining what is prohibited."

Again, wrong and a fantasy. Every law congress passes is a political law that damages our Constitution. And when was the last time you heard a congressperson speak clearly, not to mention narrowly defining his own viewpoint?

[JohnLopresti]

I understood chairman P Roberts' opening statement at the Hayden hearing May 18 to place within what is apparently your most grievous category, the divulgation by New York Times and Time, after one year's complicit nonpublication, that the FISA court statute was nullified by a presidential finding secretly and had been so for four years in the matter of warrantless wiretaps. The chairman's cite: "The National Security Agency's terrorist surveillance program became public last December as a result of a grave breach of national security. A leak allowed our enemy to know that the president had authorized the NSA to intercept the international communications of people reasonably believed to be linked to Al Qaida."
Granted, this is a Senator, not a member of the House; and such a polarized and polarizing opinion would be part of a floor discussion. But, to entrust this leadership with the task of writing new legislation is to invite censorship way beyond the triply nuanced schema you propose.
Which is to say, your incentive is important and well constructed; but we need extensive guarantees of reasonableness in laws which aspire to circumscribe Bill of Rights freedoms.
Do you teach jury nullification as an appropriate tactic when a guilty verdict is voted, as occurred in the famous J Zenger trial [1] in colonial times?
I understand there are some respected professors who prescind from teaching Marbury for similar reasons, at least in my understanding: that the defense was so novel, and the resolution sufficiently congruent to societal expectations, that the tactics' legitimacy was more dubious than legend later would have it, even though we subscribe to stare decisis.
Whatever HSCI decides, there needs to be a forum for advocacy of sufficient colorfulness to permit a very extravagant defense to win the day; though how one legislates making allowance for imaginativeness is problematic, or could be, given the current spate of rulings against reporters.
Of course, all this is in the setting of the known ongoing programs now to ferret out leakers and leakees with respect to approximately five news stories about US government policies in the world press since 2003.
One hopes your thoughtful presentation encouraged congresspeople to reach for the most protective measures they can devise in the current conflicted atmosphere in first amendment adjudication.
Fortunately, our very institutions themselves are calibrated for longterm resiliency, including how we populate the bench; and even how business is conducted and classes are configured in our best law schools.
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Notes: [1] http://www.law.umkc.edu/faculty/projects/ftrials/zenger/zenger.html

[JohnLopresti]

Is there a link to your testimony? The website at HSCI and GPO are much less than obvious, though contain interesting, nicely presented reports.

[Eh Nonymous]

It's a lot of nice line-drawing you did. But how about a simple test?

If there is *any* *arguable* public utility from disclosure, it can't be enjoined.

American rifles misfiring - nice choice. To keep the secret might allow the army to continue using them without the enemy exploiting it. But to disclose it points out how important it is to fix the problem. Advantage under my test: disclosure.

Revealing that we broke the enemy's code. If it's an ongoing code, you imply that there's no legitimate news value to the information. It's pure military intelligence. Let's assume that's true. If it's an old code, and the way we broke it is the secret part, and under the same view it's not of legitimate news value (suborned or acquired a highly/well placed agent, secret surveillance) because it's still operative, then same result.

If it's about the decisions surrounding Pearl Harbor and the books have already been written, then disclosure always wins. No government secret should last longer than the life of the persons involved, unless the secret continues in operation. This rule would discourage the cover of venality, incompetence, or even human error that would otherwise take shelter from a more lenient disclosure rule - one more permissive of continued classification.

[MTF]

Isn't this the real issue?

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§798. Disclosure of Classified Information.

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
*******************
The New York Times is by the plain language in very deep trouble.

[Bob]

Does this apply to every instance of a disclosure, or only the first? In other words, shouldn't only the person who originally disclosed the secret be the only lawbreaker, as once the secret is disclosed, it is no longer a secret. The NYT would not be liable as it did not leak the secret, it merely published information given to it by the discloser. If I read this secret and then repeat it, am I wrong also?

[MTF]

"Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes...."

As you can see, the act of "publishing" is particularly and unambiguously singled out in the language.

[JohnLopresti]

First amendment polemics are hypnotically engaging. Consider the linked article below, now one month in the archive: it describes a federal agency request to examine post mortem more than 100 cartons of research papers authored by a renowned Washington DC investigative reporter. The journalist's family has obtained legal counsel to prevent the raid, as, certainly, there are datapoints in the documents divulging secrets about current politicians. The journalist was famous only a few decades ago, although ceased writing in the 1980s, for all practical purposes. Which is to say, the journalist earned considerable repute writing in times when many government officials saw corruption charges successfully brought against them in court. The reporter was Jack Anderson.
NOTE: http://www.rcfp.org/news/2006/0420-con-fbisee.html

[Bob]

MFT,

So, if the NYT publishes the secret and then the Washington Post repeats the secret the next day, are they guilty too? Do you realize how many classified secrets are already common knowledge? Besides, once a secret is leaked, it is no longer a secret now regardless of who publishes it first, is it? And if a particular bit of information was a secret and the NYT published it, how would they have know it was a secret? They don't have access to what information is classified? Or should they be getting government permission to print any information they find newsworthy? Come on, this time answer me, don't just cut, paste, and throw the legalese at me.