September 2006

National Security and Freedom of the Press

Andrew C. McCarthy
Foundation for Defense of Democracies

There are laws and statutes that, although they have been challenged on "vagueness" and "over-breadth" grounds, provide sufficient clarity to judge journalistic conduct and criminal liability. These include the Espionage Act, the Atomic Energy Act, and the Intelligence Identities Protection Act.

The media thus far has failed to address three different scenarios under which cases should be considered. The first category covers probably 99 percent of all cases, in which reporters do their work and the government does not interfere. The government has internal regulations that strongly discourage prosecutors and agents from turning to reporters to get information from them.

The second category includes cases where the reporter witnesses a crime but is not criminally complicit. The Valerie Plame case is an example. Like any other citizen, a reporter is obligated to report what he sees. In such cases, all methods of obtaining information should be attempted before turning to the reporter; this is a prudential rule in respect to the First Amendment. That said, there is no reason why clemency should be given to reporters who fail to report evidence in a crime they have witnessed.

The third category includes cases where the reporter is a witness and has potential criminal liability. An example is the leak of the National Security Agency’s SWIFT surveillance program by the New York Times in which reporters revealed information affecting national security. There is no prudential rule granting any more leniency to reporters than to ordinary citizens when they have potential criminal liability.

As in any investigation, the focus should be on the most culpable figures. Therefore, rather than indict reporters, prosecutors should encourage them to serve as witnesses. Responsible government officials should be held most liable for leaking the information.   

Stuart Taylor, Jr.
National Journal

The fact that reporters increasingly face the possibility of being imprisoned for publishing certain information is a dangerous development. Congress should act against this when the occasion arises. Unlike government officials, reporters have not taken an oath to conceal sensitive or classified information. However, there should be a qualified journalistic privilege--similar to the attorney/client privilege--to ensure that journalists are protected, given the value of disclosing government activities.

There are many daily conversations between government officials and journalists. All of these could potentially fall under the Espionage Act. That said, the press has not handled itself well, and there is a problem with certain “indifference” among some in the media. For example, Loren Jenkins, senior foreign editor of National Public Radio, said in October 2001: “I don't represent the government, I represent history,” when questioned whether he would report on the specific details of military operations in Afghanistan.

The disclosure of the NSA wiretapping program is justifiable and should not be prosecuted. Since the NSA case raises questions that suggest the president has committed an impeachable offense, this should be an issue for debate. Moreover, the president should not be able to use the Espionage Act to prevent the revelation of such important information.

However, there are many cases in which the disclosure of details is of no benefit for the public and might inflict damage to U.S. interests. An example is the disclosure by the Washington Post of the “secret CIA prisons” in eastern Europe. Even though specific locations were not revealed, the disclosure was questionable

The Honorable R. James Woolsey
Former Director of Central Intelligence

The media generally act quite responsibly and are usually willing to negotiate what will be published if such facts might threaten national security. In most cases, eliminating some specific details will allow the story to be disclosed without threatening national security. Since this is a recurring issue, there should be a set of criteria that enables media executives to make responsible decisions to hold an entire story, or particular parts of it.

First of all, would a source or method be betrayed? In these cases, it is a mistake to assume the enemy already knows such facts. “Human stupidity” often helps solve criminal cases. Assuming an enemy knows about a program and subsequently disclosing such facts is a mistake. An example is the 1998 disclosure that the United States was eavesdropping on Osama Bin Laden’s phone. Second, does an agency collect intelligence that could arguably be illegal or unconstitutional? Third, is abuse involved, as is often alleged? Watergate is frequently used as an analogy, but it is less than helpful since it was a burglary with specific political objectives. The NSA case presents a unique dilemma, as it forces the media to reconsider their criteria for disclosure. When abuse for political or personal gain is likely, it should be a factor in media executives' decisions whether to disclose the secret information.

The media must also consider whether there is an expectation of privacy or an absence of proper oversight. The SWIFT case is an example in which methods were compromised. Even though terrorists may know of ways to get around such surveillance, even a few leads might be useful. SWIFT was not illegal, there was no abuse, nor was there an expectation of privacy. Considering the given criteria, this story should not have been published.

A second question is whether to prosecute. To assess this question, a journalist must first consider the consequences of a story. The NSA case concerns signals intelligence in particular, where a single disclosure can have extraordinary damage. In 1942 the Chicago Tribune released information on its front page that the United States had broken Japanese naval codes, which Japan either did not know or did not believe. Regardless, the disclosure could have changed the course of the war.  The NSA case is similar. The communications tracked by the NSA should be considered battlefield communications even though they take place in the United States.

In many cases priority has been given to privacy rather than national security. Moreover, politically correct restrictions have been detrimental to the country’s safety. To limit leaks about sensitive security matters, the United States will have to make tough decisions focused on ensuring that only a few people have access to the most sensitive information.

Michael Isikoff
Newsweek

Most, if not all, reporters are citizens, patriots, and human beings, amenable to suggestions by the government to withhold or alter a story that might threaten national security. However, the over-classification of government information has made skeptics of many reporters. An example in which over-classification has actually harmed national security was noted by the 9/11 Commission: the panel concluded that vital information was not shared among government agencies because too much of it was classified.

An example of a leak that did not occur because of classification involved information submitted ten days before the vote on whether or no the president should be authorized to go to war in Iraq. This information, which was part of the National Intelligence Estimate, cast doubt upon whether there were weapons of mass destruction present in Iraq prior to the war. Due to over-classification this information could not be disclosed; the intelligence would have contributed substantially to the debate and subsequently the vote on whether to go to war.

When controversy arose over the location of WMDs, the vice president authorized his chief of staff, Lewis “Scooter” Libby, to “leak” certain portions of the NIE report that supported the case for going to war. This illustrates how leaks can be used for political gain rather than to contribute to an honest debate on national security.

Senior officials who have facts and believe that the law is being broken have an obligation to leak. Reporters should make sure that they get all the facts right, and then make a decision whether to publish, and if so, what.

AEI intern Ivan Kooiman prepared this summary.