ÇďżűĘÓƵ

Spring 2012 Bulletin

WikiLeaks and the First Amendment

On November 12, 2011, at a meeting sponsored by the ÇďżűĘÓƵ in collaboration with the Chicago Humanities Festival, University of Chicago law professor Geoffrey R. Stone moderated a conversation with journalist Judith Miller, Judge Richard A. Posner, and author Gabriel Schoenfeld about the balance between freedom of the press and national security. Each panelist offered his or her perspective on bridging legal and ethical issues. Together they attempted to address the critical question at the heart of the WikiLeaks issue: what is the balance between the secrecy a government must maintain and the transparency a healthy democracy requires? The panel discussion served as the ÇďżűĘÓƵ’s 1978th Stated Meeting. The following is an edited transcript of the discussion.

“We classify a great deal of material that in fact need not be kept secret. This state of affairs breeds cynicism about the whole enterprise of government secrecy. To have a more effective, credible classification system, we must eliminate a vast amount of classification that currently exists. But that still leaves the question: What should be classified?”

–Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor, University of Chicago Law School

Geoffrey R. Stone
Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. He has been a Fellow of the American ÇďżűĘÓƵ since 1990.

WikiLeaks is an international, nonprofit organization that publishes submissions of private, secret, and classified materials from confidential sources, news leaks, and whistle-blowers. It was launched in 2006 by Julian Assange, an Australian Internet activist. In 2010, WikiLeaks published secret footage of a 2007 American helicopter attack in Baghdad that killed several Iraqi journalists. Later that year and in early 2011, it published some 480,000 previously secret documents on the wars in Afghanistan and Iraq, 779 secret files relating to prisoners detained at Guantánamo Bay, and 77,000 classified State Department cables. It was the State Department cables that created a firestorm, and although WikiLeaks made some effort to redact the most dangerous or harmful information in the cables, critics say it did so recklessly. Thus, even though the released cables contained a great deal of innocuous and uninteresting information, some of the intelligence turned out to be enlightening and helpful to public understanding, while some of it proved to be harmful to the national interest.

In an example of the latter, the American ambassador to Mexico was forced to resign under Mexican pressure after WikiLeaks disclosed a cable to the State Department in which the ambassador said that the Mexican Army had been risk averse in going after drug traffickers. In another example, the Prime Minister of Zimbabwe, an opponent of the despot Robert Mugabe, is now under investigation for treason because one of the classified cables released by WikiLeaks reported a statement that he had made to the U.S. ambassador suggesting that the United States should continue its sanctions against his country.

WikiLeaks received the State Department cables in a data dump from Private Bradley Manning, who had access to the cables through his job in the Pentagon. Manning is currently being held in military custody at Fort Leavenworth, Kansas, and the U.S. government is investigating Assange and other persons associated with WikiLeaks to determine whether they can be criminally prosecuted consistent with the First Amendment to the U.S. Constitution. All this raises interesting issues, and I would like to turn the program over to our three experts, each of whom will speak on whatever facet of this controversy he or she finds noteworthy.

Our first speaker is Judith Miller, an author and Pulitzer Prize-winning investigative reporter. She worked for The New York Times from 1997 to 2005 and is now an Adjunct Fellow at the Manhattan Institute and a Contributing Editor of its magazine, City Journal. Since 2008, she has been a commentator for Fox News, speaking on terrorism and other national security issues, and on the need to strike the balance between protecting both national security and civil liberties in a post-9/11 world. Prior to leaving The New York Times in November 2005, Judy spent eighty-seven days in jail to defend a reporter’s right to protect confidential sources in the controversy over CIA operative Valerie Plame’s leaked identity. That year, she received the Society of Professional Journalists’ First Amendment Award for her protection of sources. Judy has written four books, including Germs: Biological Weapons and America’s Secret War, God has Ninety-Nine Names, which explores the spread of Islamic extremism, and Saddam Hussein and the Crisis in the Gulf.

Our second speaker, Judge Richard A. Posner, is the most influential legal thinker of the past half-century. Both as a judge on the U.S. Court of Appeals and as a scholar at the University of Chicago, Dick has repeatedly changed the way people think. He has published more scholarly books than Shakespeare published plays. Several of them are directly relevant to today’s program, including Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, Not A Suicide Pact: The Constitution in a Time of National Emergency, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, and Catastrophe: Risk and Response. To give you a sense of the extraordinary breadth of Dick’s mind, I will mention some of the other books that he has published: The Crisis of Capitalist Democracy, Sex and Reason, The Essential Holmes, The Problematics of Moral and Legal Theory, The Economics of Justice, How Judges Think, and Law and Literature – to say nothing of his books on antitrust, the Clinton impeachment, Bush v. Gore, and a host of other topics.

Our third speaker, Gabriel Schoenfeld, is a Senior Fellow at the Hudson Institute and the author, most recently, of Necessary Secrets: National Security, the Media, and the Rule of Law. Gabe writes frequently on national security and intelligence issues for The Wall Street Journal and The Weekly Standard, and his op-eds, book reviews, and articles appear regularly in publications such as The New York Times, The Washington Post, Los Angeles Times, The New Republic, The Atlantic Monthly, Bulletin of the Atomic Scientists, and Der Spiegel. From 1994 to 2008, Gabe served as Senior Editor of Commentary, and before that he was a Senior Fellow at the Center for Strategic and International Studies and served as a staff member for Senator Daniel Patrick Moynihan. Currently, Gabe is on leave from the Hudson Institute and serves as a Senior Advisor to the Romney for President Campaign, although he speaks today in his individual capacity.

Judith Miller
Judith Miller is an investigative journalist, formerly of The New York Times. She is an Adjunct Fellow at the Manhattan Institute and Contributing Editor of its magazine, City Journal. She is also a commentator for Fox News.

In 2005, I spent the summer at the Alexandria Detention Center outside of Washington. I could tell you that I went for the food, and that I was misled. I actually went to protect a source, who had not given me permission, or so I thought, to disclose his identity. I was determined to stay in jail until either I obtained a waiver that would enable me to identify him or the government relented. Fortunately, after eighty-seven days, I obtained the waiver. In the meantime, I learned a lot about jail, and about journalism, and I became even more of a fanatic about the need for journalists to protect sources.

That is what is at stake since Julian Assange and WikiLeaks are being hounded, persecuted, and threatened with violations of the Espionage Act for doing what most of us do in different ways, shapes, and forms every day. I want to address the climate in which journalists are now operating to illustrate why I feel as strongly as I do about a man whom I personally find obnoxious.

Many of us were very optimistic that press freedom would expand back in 2008 when presidential candidate Barack Obama promised to increase transparency and reduce government secrecy. Unfortunately, and perhaps this comes with the territory, President Obama has continued a trend toward greater government secrecy, even compared to previous administrations. According to the Information Security Oversight Office, the federal agency that provides oversight of the government’s classification system, the annual cost of classification has risen to more than $10.7 billion – crossing the $10 billion threshold for the first time – because many government decisions that used to be unclassified are now being classified as secret. There were approximately 224,000 classified documents in 2010, which is a 22 percent increase from 2009.

Freedom of Information Act requests are also increasing in response to growing government secrecy. There were more than a half-million requests in 2010, or 40,000 more than there were in 2009; but our government bureaucracy responded to 12,400 fewer requests than in the previous year. So more requests are being made, and fewer of them are being processed.

It gets worse: this administration has invoked the state secrets privilege more than any other in modern times, including President Bush’s administration, rather than respond to requests for classified information. President Obama has applied the privilege with respect to National Security Agency surveillance, illegal wiretapping, and other activities, such as extraordinary rendition and assassination. A claim of state secrets privilege shuts down litigation; it shuts down civil challenges.

Despite his campaign promise to protect whistle-blowers, Obama has one of the worst records in modern times of investigating, persecuting, and taking judicial action against government whistle-blowers. The president is now threatening to use the 1917 Espionage Act against people who not only leak but publish information. Your right to know depends a lot on investigative journalists, which means that people like me have to be willing to go to jail to protect sources. Five years after I went to jail, Congress still has not passed the legislation that Mr. Obama, as both a senator and a presidential candidate, promised to enact to protect journalists who refuse to disclose sources to grand juries. Forty-nine states in this country have state statutes, but we lack a federal statute. And when national security information is at issue, most of the cases that challenge our right to keep these sources secret are considered in federal courts.

We desperately need this legislation. In the wake of the WikiLeaks investigation, President Obama has done nothing to help it through the Senate. It passed in the House but is dead in the water in the Senate, thanks to Julian Assange and the president’s lack of enthusiasm for the legislation. Here, I might point to a June 2011 column that Geof Stone, our distinguished moderator, wrote for The New York Times on the difference between what President Obama has done and what he promised in the area of transparency.

Some people will tell you that Julian Assange is not a journalist, that he does not perform like or characterize himself as a journalist. It would be easier for people like me if that were so. But Assange describes himself as a journalist and WikiLeaks as a nonprofit media organization, and he claims journalistic and ethical privileges. You may not agree with his methods, but he is responsible for releasing more information about how our government works – much of it helpful to public understanding and some of it dangerous – than any other single journalistic organization in the country. The fact is, almost every major publication in this country cooperated with Assange, in one way or another, to help him get the information he had obtained out. So if he is vulnerable, then we all are vulnerable, and if he can be taken to court and arrested for violating the Espionage Act when he is not even an American citizen, then no American journalist is safe.

I would prefer to think of Assange as another category of journalist, but that is not possible in the Internet age. After all, the First Amendment was enacted to protect not the big, rich, powerful organizations that can afford to fight legal cases, but the lone pamphleteer. Assange is the lone pamphleteer of the Internet era. Bill Keller, the former executive editor of The New York Times, said that it was hard to conceive of a prosecution against Julian Assange that would not enable a stretching of the law that could be used against The New York Times as well. Think about what we know, and how we know it, whether through Bob Woodward and his insightful books, which are filled with classified information, or my humble efforts to inform Americans about biological weapons and the secret bio-defense research that our country conducted for years. None of this information would be available if someone had not decided to talk about classified information. So it is not a happy task, but an essential one, that I rise to defend Julian Assange and WikiLeaks. I hope that you will support me because, however unpopular journalists may be, a government without restraint, and without transparency, is dangerous.

Richard A. Posner
Richard A. Posner has been a Judge on the U.S. Court of Appeals for the Seventh Circuit since 1981, serving as Chief Judge of the court from 1993 to 2000. He is also a Senior Lecturer at the University of Chicago Law School. He has been a Fellow of the American ÇďżűĘÓƵ since 1982.

In contrast with my fellow panelists, I do not think that the disclosure of classified information has ever caused significant harm to American foreign policy or national security objectives. Indeed, in many cases, it has helped attain those objectives. On the other hand, I do not think that the government’s efforts to stifle revelation of classified material are consequential. By my estimation, in the course of about four years WikiLeaks has published at least 750,000 documents, many of which are U.S. classified. What has been the harm to American foreign policy or national security? I think there has actually been a net benefit. Consider, for example, that many of the leaked documents reveal abuses perpetrated by U.S. or allied military forces in Iraq and Afghanistan. They focus on civilian casualties, such as the U.S. helicopter attack in Baghdad that Geof mentioned. Everyone knows that abuses happen frequently in war, and that many civilians are killed. Before the leaks, the prevalence of civilian casualties in Iraq and Afghanistan was no secret. The leaks show that while the number of casualties was somewhat higher than people had believed, the situation was not nearly so bad as it could have been. Assuming that WikiLeaks has access to all that we know about civilian casualties in these wars, the leaks reveal that they were somewhat worse than they had been represented to be, but not greatly so.

The diplomatic leaks are also valuable in the sense that they tell foreign governments what we actually think but cannot say, and that is very useful. U.S. criticism of the Mexican Army’s handling of the war on drugs, which Geof mentioned, is a good example. Certainly, there are sacrificial lambs when diplomatic communications are published: the Mexican ambassador was one; so are the generals who have been fired because they said unpleasant things about Pakistan. But the fact that the Mexican government knows what we think about its Army, and that Pakistan knows what we think about its relations to the Taliban and to China, is all to our advantage. The United States is still very powerful, and having these foreign governments know that we know that they are undermining our interests is useful for us. One could make an analogy to mutual espionage during the Cold War, in which our spying on the Soviet Union and their spying on us reduced the likelihood of actual war. What we said publicly about our intentions and capabilities, and vice versa, had no credibility; but when each country found out what the other’s real intentions and capabilities were, both could make decisions on the basis of accurate information, and not blunder into war because of misunderstanding – a common precipitant of wars.

The situation is different in the second example that Geof gave, regarding the fellow in Zimbabwe who was endangered because of the leaks. Clearly, we want to protect the safety of individuals, and WikiLeaks apparently made some effort to shield the identities of persons who might be endangered by the revelation. That is one important interest, and there are also some military secrets about plans, weapons design, and capabilities that we need to keep secret if we can. But these categories of intelligence make up a very small fraction of all classified information.

Overclassification is extraordinarily rampant, and because it is a response to compelling bureaucratic motivations–one being to avoid embarrassment–I do not think anything can be done about it. Second, classification increases bureaucrats’ sense of self-importance. Everyone wants to be privy to secrets, for if you know a lot of things that other people do not know, it makes you feel important. But most significant, though I think you have to work in government to understand this, is that agencies have compelling incentives to conceal information from other agencies. Turf warfare is pervasive in government because government agencies cannot sell turf. In private enterprise, if, say, a competitor wants your patents, you can sell them to him. But you cannot sell turf if you are a government bureaucrat; you can only lose turf, which means suffering uncompensated loss. When I was Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, I had a vicious battle with the Chief Judge of the District Court because I wanted access to one of the courtrooms on “his” floor of the courthouse. He did not want the Court of Appeals on that floor, because if he permitted that encroachment on his turf, where would the process stop? His court could (figuratively speaking) end up out on the street. At one point, as we were fighting over this absurdity, he said to me, “Look, if the newspapers got hold of this, it would be an embarrassment.” I said, “Let it happen; I’m not backing down.” Eventually, we managed to compromise.

Geof mentioned some of my academic work on national security intelligence, which allowed me to meet a lot of people in various agencies. I was once driven to an agency to give a Law Day talk, and the staff member escorting me mentioned that the director of the agency would be happy to answer any questions I might have. When I told her that I did not have a security clearance, she said that it didn’t matter; because I was a judge, they would tell me anything. When I arrived, they gave me a tour and in the course of it showed me several classified documents. What was interesting was that there was no reason why most of those documents should have been classified. But not all. One document was classified because it was a list of U.S. sites ranked from “most likely” to “least likely” to be the target of a terrorist attack. That is a document you would not want terrorists to access; inevitably, they would choose to attack the least-protected site, the one at the bottom of the list. So there is government information, involving not only identities of people who might be in danger but also information that would actually be valuable to an enemy to know, that ought to be kept secret, but it makes up only a very small percentage of all classified documents.

I’ll add one more anecdote to illustrate the lengths to which government agencies will go in order to protect secret information. Suppose you work for one of the twenty or so U.S. national security agencies, and that someone from another agency wants access to information in one of your databases that is germane to his agency’s duties. The information is classified as top secret, so the agent presents his top-secret clearance. That top-secret clearance must be based on a national security polygraph test designed to weed out security risks. One such test is a “lifestyle” polygraph test, which tries to embarrass the subject by asking questions about personal topics, such as sex. You, the holder of the wanted information, may deny the agent access to your databases if his top-secret clearance is not based on a lifestyle polygraph test but merely on a “national security” top-secret clearance, in which case you will instead offer to look through your files for anything of interest, which you will put on a computer disk for him. But you will not let that person into your agency’s system. Such practices are endemic to the government; that will not change. But to some extent, there are genuine secrets in the sense of information that we need to keep secret in order to protect people or legitimate needs of national security.

The First Amendment as interpreted by the courts does not forbid overclassification as such. I do not want to seem cynical, but there are many exceptions to free speech, such as laws against libel and slander and the right to keep medical records private. The deliberations of judges and juries are an example of what government is permitted to keep secret merely or mainly to avoid embarrassment. There are further court-made First Amendment exceptions for military secrets, trade secrets, misleading advertising, product disparagement, copyright infringement, plagiarism, conspiracy, child pornography, solicitations for crime, harassment and bullying, and campaign contributions when made to the politicians themselves. So it’s a Swiss cheese, the First Amendment; if you want to add another hole for some category of national security secrets, that’s fine. What we call freedom of speech is something the Supreme Court has developed over two hundred years of purportedly interpreting a sentence in an eighteenth-century document. If we need to protect secrets, there is no constitutional impediment to doing so. But the problem of overclassification, which makes efforts to protect secrets look ridiculous, is deeply embedded in the way governments – not only our own – operate. And I do not think anything can be done about it.

Gabriel Schoenfeld
Gabriel Schoenfeld is a Senior Fellow (on leave) at the Hudson Institute and a Resident Scholar (on leave) at the Witherspoon Institute. He is a Senior Advisor to the Romney for President Campaign.

The gravity of the issue of national security secrecy cannot be overstated. At stake, and I will make a different argument than my colleagues, is the personal safety of all Americans. Osama bin Laden may be dead, but Islamic radicals remain determined to strike the United States. Many of our young men and women are at war in Afghanistan and other battlefields abroad, and secrecy is often vital to the preservation of their lives. To keep our country secure, our government generates a great many secrets of many different kinds. We cannot publicize, among other things, all the intelligence methods by which we are tracking terrorists. We cannot reveal the vulnerabilities of our bridges, tunnels, and buildings. We have an absolute duty to keep secret information such as the blueprints for nuclear weapons or the formulas for producing aerosolized anthrax.

But equally at stake is the character of our democracy. We live in an open society in which secrecy is antithetical to the democratic ideal. Secrecy can be used as a cover for corruption and wrongdoing. We depend on a free press to provide us with information about what our government is doing in our name, including some of the things it is doing in secret. Indeed, much of what we read in the newspapers about foreign affairs is based on reporting about state secrets. A study by the Senate Intelligence Committee counted 147 separate disclosures of classified information that made their way into the nation’s top six newspapers in one six-month period alone. The regular publication of secrets is part of the American system, and that is the way it ought to be. But even as we want the press to report on secrets, it must do so under the rule of law. That is, the press – which certainly includes WikiLeaks &#8211 must be vulnerable to prosecution when it violates the laws governing secrecy. The First Amendment states that Congress shall pass no law abridging the freedom of speech or of the press, and Judge Posner has pointed to all the exceptions to that rule: for example, we cannot publish false advertising, and we are forbidden to yell “Fire!” in a crowded theater.

Congress has also passed laws that punish the publication of state secrets, and it has done so for the very same reason that we are prohibited from yelling “Fire!” when there is no fire: this type of speech can get people killed. Thus, the COMINT Act makes it a crime to publish classified information pertaining to communications intelligence; the Atomic Energy Act makes it a crime to publish classified information pertaining to the design of nuclear weapons; and the Intelligence Identities Protection Act makes it a crime to disclose the identities of undercover CIA agents. Although these laws are in tension with the First Amendment, no court has ever struck them down. They were passed because the American people, acting through their elected representatives, sought to protect themselves against anyone, including journalists, who would disclose government secrets to do us harm. Valid laws that would punish the press for publishing state secrets are on the books.

Does the existence of such laws mean that journalists should be prosecuted every time they publish a state secret? Absolutely not. That would be extremely foolish. It is widely recognized, as my colleagues have pointed out, that if the U.S. government uses the secrecy stamp promiscuously, it marks many items secret that should not be. The issue is not whether the press should always be prosecuted for publishing secrets. In almost all cases, it should not be. I myself published classified information when I was an editor at Commentary magazine, and I would do so again. The real question before us is whether the press can be prosecuted when it publishes secrets that place the country in danger. That is the question raised by WikiLeaks.

Such danger is not purely hypothetical. Not everyone with access to a printing press, or to the Internet, will always behave responsibly. There is no shortage of examples of real harm being done to our country through the disclosure or publication of leaks. During World War II – to take a famous case pertaining to this city – the Chicago Tribune, under the auspices of Colonel Robert McCormick, published a story suggesting that the United States had broken Japanese naval codes. If Japan had acted on that story and changed its codes, the United States would have lost the war: we would have been deprived of a critical window into Japanese planning, without which thousands, if not tens of thousands, of American servicemen would have lost their lives. In 1973, a magazine called Counterspy began to publish the names of hundreds of CIA officers around the world. In 1975, one of those officers, Richard Welch, was assassinated by Greek terrorists – just after Counterspy had outed him as the cia station chief in Greece. In 2006, The New York Times chose to reveal the workings of a counterterrorism program that tracked the movement of al-Qaeda funds. The program was lawful, operating under valid warrants, and by several accounts, the story caused one of our principal sources of al-Qaeda-related intelligence to dry up.

Now we have WikiLeaks. In the name of transparency, WikiLeaks has indiscriminately dumped thousands of, in many cases, entirely unredacted secret documents onto the Internet. Many of them are innocuous. Some clearly help us better understand our country’s role in the world, but others do serious harm. One WikiLeaks document described the jamming devices employed by American soldiers in Iraq to scramble the signals used by insurgents to detonate roadside bombs from a remote location. The document gave specific information about how the jammers functioned, what their rate of power was, and which frequencies they blocked. Is there any reasonable person who believes that it should be legal to publish the secret countermeasures our soldiers use to keep from getting blown up on the battle- field? Should the press be free to reveal the identities of undercover CIA operatives? Is there any person in this room who believes that the press should be free to publish the technical secrets of weapons of mass destruction, or the recipe for something like aerosolized anthrax?

The key question is, who gets to decide? In a democracy, the people get to decide, and what the American people have decided, acting through laws passed by their elected representatives, is that the publication of certain kinds of secrets warrants prosecution. They have decided, in other words, that the First Amendment is not a suicide pact.

Discussion

Geoffrey Stone

There is a general consensus among our panelists that if classification is meant to prohibit the disclosure or publication of information that must be kept secret for the sake of national security, then we vastly overclassify. For the different reasons that have been suggested, we classify a great deal of material that in fact need not be kept secret, information that even people like Gabe have published, despite the fact that it is classified and publishing it is illegal. This state of affairs breeds cynicism about the whole enterprise of government secrecy. To have a more effective, credible classification system, we must eliminate a vast amount of classification that currently exists. But that still leaves the question: What should be classified?

Gabe argues that information that would be harmful to national security should be classified, that anyone who discloses it should be punished, and that anyone who publishes it should be punished. Gabe, I found it interesting that you rely on Holmes’s hypothetical cry of “Fire!” in a crowded theater. Holmes held that it was punishable falsely to yell “Fire!” If the call of “Fire!” is truthful, certainly we would not punish it.

The reason Holmes emphasized the false cry was to highlight situations in which the speech itself was valueless. If the speech is true, the problem is completely different. Thus, it is not at all clear that Holmes’s example supports punishing speech merely because it causes harm. The value of the speech matters as well.

Gabriel Schoenfeld

Regarding national security secrecy and the question of harm, let’s take an example that I think we can all agree on: that the publication of the identities of undercover CIA officers can cause harm to those people. Indeed, Congress acted to make it illegal to publish those names.

Judith Miller

I would argue against Gabe’s claim that there are cases in which we should punish those who publish classified information. First, in terms of our legal history (and here I am venturing into unsafe territory because I am not a lawyer, which would make me even more unpopular than being a journalist), since 9/11, we have seen the creation of sixty new categories of classified information. If you think that we live in a more open and transparent society than we did before 9/11, you are wrong.

Second, with regard to Julian Assange and WikiLeaks, punishing a journalist for publishing information would be a radical new step. When the government moved to stop The New York Times from publishing the Pentagon Papers, the Supreme Court weighed the damage to national security of publishing the classified information against the infringement on the First Amendment of preventing its publication. Justice Stewart held that in order to deny The Times the right to publish the information, the government would have to prove that the disclosure would cause direct, immediate, and irreparable damage to our nation or its people. Both the Justice Department and the Pentagon have conducted studies of the damage that Julian Assange and WikiLeaks have done to our national security. Neither has disclosed the results of those studies. Why? Perhaps they cannot prove or have not been willing to make a case that such damage has occurred. That should give us pause as we consider criminalizing the publication of secret information.

Finally, news organizations and the government deal with these issues in informal ways every day, but we read about only the cases that go to court or incite public fighting. On a weekly basis, a reporter from The New York Times, The Washington Post, or Fox News calls the White House and says, “We are going to publish a story that is really going to make you angry” – or, as Judge Posner put it, “embarrassed” – “and I would like your comment.” The White House then says, “Oh no you don’t. Let’s talk about this.” These discussions give the White House an opportunity to make the case that the publication of certain information would jeopardize national security. Most often, papers do not publish contested information; they withhold information, as The New York Times has done again and again. This is the system that we have devised to avoid prosecuting journalists for doing our jobs: that is, letting you know what is going on in your government, leaking what the government wants you to know and withholding what it doesn’t.

Richard Posner

I would like to make two points. First, I want to take issue with Judith’s statement that more documents are being classified. While I am sure this is true, consider that the government is growing in size, and that publication is growing as well. Are more documents being classified as a percentage of all government documents, or is a larger government simply creating more documents, classified and unclassified alike? Further, what if leaks are increasing at a faster rate than classification?

Second, Geof said that the value of information must be weighed against the harm that leaking it would do to national security. But attempting to conduct such a formless analysis would be fruitless. Would the court balance value against harm on a case-by-case basis? The dilemma can be explained thus: on the one hand, like Britain, we could have an Official Secrets Act, making it a crime to reveal classified information. But because of the vast overclassification, that type of policy would be overly severe. On the other hand, that the law could define acts as criminal on the basis of some concept of harm. Many national security laws have this feature, but it is very difficult for the government to prosecute dangerous leaks, even when it has a strong case, because explaining to a jury the harm that the leak caused may require disclosing secrets. So that option does not work either.

Our society has many problems that cannot be solved. One of them is the struggle between the bureaucrats who are desperately trying to keep secrets and the hackers, the journalists, the media, YouTube, and everyone else who is trying to reveal secrets. I think that the current situation is the best we can hope for. Clearly, we want to protect the physical safety of people and could perhaps define some narrow category of punishable activity, such as a disclosure that endangers lives. But given the varying incentives of the many parties involved in the struggle over secrecy versus disclosure, I do not think much progress can be made on that front, and as I said, I do not think it is all that important.

Geoffrey Stone

What would you do with Gabe’s hypothetical scenario?

Richard Posner

Gabe gave the example of American troops being endangered by revelations about their jamming equipment. That seems to me a clear endangerment of human lives, so I have no objection to punishing the party responsible for the leak. On the other hand, because lawyers will always struggle to expand categories, it is possible to argue in almost any case that a leak may eventually lead to someone’s losing his life. Judith quoted Justice Stewart’s view that publication of classified information can be prevented only if the information will cause direct, immediate harm. But that rationale does not make sense. If the country is to be destroyed by a ticking time bomb in three years if some secret is revealed, rather than tomorrow, does that mean that we can’t prevent the endangering revelation because the danger is not immediate? The categories that judges try to impose on this unmanageable material are simply inadequate.

Gabriel Schoenfeld

I would also take issue with Judith’s argument. The Pentagon Papers case came to the court as a prior-restraint case, not a case of prosecuting The Times after the fact for having published secret information. Five of the nine justices said that if information had come to them after the fact, as a prosecution, rather than as a prior-restraint case, which demands a very strict standard, they would have considered convicting The Times under the Espionage Act.

Judith Miller

But the government did not bring that case to court.

Gabriel Schoenfeld

I think the country is fortunate never to have had a prosecution in the Pentagon Papers case. It would have been very difficult for the government to bring that case to New York City, and the federal district prosecutor declined to do so for that reason. But the Chicago Tribune case is a classic example in which a newspaper publisher intent on publishing a story that could kill thousands of American servicemen should go to prison.

Judith Miller

I think the government decided that it did not want to bring the Pentagon Papers case to court because doing so would have generated unwanted publicity for the leaked information. With regard to the WikiLeaks case, I have no problem with the government cracking down on Bradley Manning for leaking classified information that he took an oath not to disclose. I do not think The Washington Post should be prosecuted for publishing it. There is a difference.

Gabriel Schoenfeld

Judy, the laws are on the books. If you disagree with the law, work to change it. Don’t violate it.

Judith Miller

I have been working to change the law for the past five years. Unfortunately, the president has not upheld the promises he made.

Geoffrey Stone

Gabe says that the laws are on the books, but that is not an answer to anything in a world governed by constitutional law. The argument is whether the laws on the books are constitutional. However cynical one may be about how the courts interpret the Constitution, the fact that laws exist is not an adequate answer to whether they are constitutional.

Gabriel Schoenfeld

The Espionage Act itself is problematic. It has never been used for prosecuting the press, and doing so would raise serious constitutional issues. The COMINT Act, however, is a model of clarity whose statutes protect narrow categories of information – precisely the kind that can get lots of people killed. I think that law sets a good course for the United States.

Geoffrey Stone

Let’s address the question of harm done to American soldiers. Suppose The New York Times reveals that torture has taken place at Abu Ghraib, and the government argues that the disclosure will endanger American soldiers by infuriating the enemy and ensuring that captured American soldiers are more likely to be tortured in even worse ways. Therefore, the government wants to punish the disclosure of the fact that Abu Ghraib occurred. According to your theory, Gabe, would you have to allow that punishment?

Gabriel Schoenfeld

No. We do not have a law that protects that kind of information. I would be opposed to such a general law because it would endanger our liberties, but I support narrow laws that protect narrow categories of information.

Richard Posner

I have a question for Judy. Suppose that it is May 1944, and The New York Times publishes an article reporting that on June 5, the United States and Britain will invade northern France &#8211 the event we now know as DDay. The Americans and the British have been trying to make Germany think that the attack will be in Calais, and as a result, the Germans have moved their armored divisions to Calais. But the attack is to be in Normandy, where the Germans are not expecting them – that is, until The New York Times exposes their plan. Do you think this disclosure would not be punishable?

Judith Miller

I agree that it would be punishable. But if we think back to the Cuban Missile Crisis, The New York Times did exactly what you suggested it not do in the hypothetical situation regarding 1944: it did not publish the information at the request of the government. Afterward, President Kennedy said he wished that it had done so. On balance, the press will at times get things wrong. The press will occasionally publish what it should not. For example, I would agree with Gabe that revealing information about how we are tracking the money of terrorists has been damaging, and I have been following terrorists since before it became fashionable. The revelation made it harder for the U.S. government to track that information. However, the government should not make the decisions about what can and cannot be published.

Richard Posner

There were no Americans endangered by the Bay of Pigs invasion, just Cubans. We could have written off those Cubans, and in fact did.

Gabriel Schoenfeld

We live under a system of laws. The press does not get to decide when it can violate the law, or when it can observe the law. It is obliged to follow the law, unless you are taking the position that the press is engaging in civil disobedience, which is a noble position.

Judith Miller

That is what I did. I decided to go to jail because the law said that I had to testify before the grand jury, but in my mind, my journalistic obligation to the source took precedence. But why invent laws that make it easier for the government to keep information from the public, especially information that the public ought to have?

Gabriel Schoenfeld

In your case, the public was investigating a crime.

Judith Miller

Actually, a prosecutor was arguing that he was investigating a leak under a statute that you cited, but the investigation under the Intelligence Agents Identities Act turned into a perjury investigation. The point is that the government is very powerful, and it needs checks on its power. The press is one of them.

Gabriel Schoenfeld

Congress has repeatedly declined – that is, the American people have repeatedly declined – to enact the kind of statute that you favor.

Richard Posner

Congress is not the American people.

Gabriel Schoenfeld

We live in a democracy. Congress represents the American people, and that is the best we have. Of course, it does not reflect the will of each and every one of us.

Richard Posner

It often does not represent the will of anyone but a handful of special interest groups and lobbyists. You have to be realistic about what democracy means. Democracy is a system whereby people get to throw out officials in periodic elections. It does not mean that legislation reflects the popular will.

Gabriel Schoenfeld

I’m somewhat less cynical about American democracy than you are.

Questions from the Audience

Question

Judith, in a democratic society, to what extent do you believe it is a journalist’s responsibility to report accurate and precise information to the American public? Within that context, to what extent do you believe the press has relied on information provided by incumbent regimes – the Bush administration in particular?

Judith Miller

In my reporting on national security, most of the people I rely on for information have jobs requiring them to take polygraph tests every six months. They must feel strongly about an issue to be willing to talk to me because they know that the first question of every polygraph test is: have you had any unauthorized conversations with a journalist? This is a very difficult area for a journalist to work in. You try to verify the information you have as best you can. You hope that people who disagree with what you are being told will come forward. You hope they will attach their names to their comments because many publications have rules against anonymous sources, as my former publication did. This is not science; it is very difficult. Everyone gets things wrong.

With regard to the weapons of mass destruction that Iraq ultimately did not possess, my reporting on the issue reflected accurately what the intelligence community believed at the time – at least what the president was told they believed. Both journalists and the intelligence community have to do a better job getting it right. I think that the publication of information like this helps us get it right, and that is why I’m still doing it.

Question

A few years ago, Prince Harry was sent to fight in Afghanistan. The British press embargoed the story, based on a sense that reporting it would subject the prince to clear and present danger. He was then outed by Matt Drudge of the Drudge Report. If you had jurisdiction, what would your conclusion be?

Gabriel Schoenfeld

I do not see any special law on the books that would protect an American prince, but I would support a law that would protect the identities of intelligence agents. We have seen the damage that can result when their names are inadvertently, or purposefully, disclosed. The British have their own methods.

An interesting counterpoint to your case is the story of David Rhode, a New York Times correspondent who was kidnapped by the Taliban. The Times not only kept this secret from the public for six months but managed to get every other newspaper and blogger in the country to keep it secret. It only revealed the information when Rhode escaped his captors and made his way to safety. When the lives of journalists are on the line, the papers are very careful. When the lives of other Americans are on the line, they are not always as careful.

Question

On the one hand, you can have very broad laws that are infrequently enforced, which in a sense changes the rule of law to the rule, if you will, of men, with prosecutors deciding when to enforce laws. On the other hand, you have this “trust us, we’re journalists” system, which might be fine for The New York Times and The Washington Post, but today anyone who feels like creating a blog can claim to be a journalist. Which evil are we going to go with? I don’t see where the middle ground is.

Judith Miller

As a journalist, I would side with Thomas Jefferson: rather than choose between having a government without the press or a press without government, we should have a government with a free press. It is a balance, and we are still a democracy. We have overcome many challenges and are safer and freer than we were before 9/11, though less open.

Richard Posner

The general answer to the question is that criminal statutes are overbroad. They are vague because of the concern with loopholes, and an enormous number of cases are left to prosecutorial discretion. I think that this state of affairs is inevitable. The insoluble problem is that the amount of classified information is vastly greater than the amount that should properly be withheld from the public. Broad, vague laws are dangerous because they affect people: even an unsuccessful prosecution is very costly, and it creates a lot of anxiety. But narrowly defined laws make it very difficult to prosecute harmful revelations because it is often difficult to reveal the reason why a revelation is harmful without disclosing more information about a secret activity. So I do not think there is a good solution. We have a multiplicity of laws, and leaks that involve electronic transmissions are punished much more severely than others. It might be possible to consolidate the laws, make them a little narrower, and somewhat clearer. That’s all I could recommend.

Gabriel Schoenfeld

We have a system of prosecutorial discretion, and prosecutions have been very rare. The Obama administration is the first to employ the Espionage Act in a rigorous way. Since the Act was passed in 1917, there had been a total of three prosecutions before the Obama administration came to office. Now, an administration that has pledged to be the most transparent in all of American history has somehow become the most Nixonian. That is ironic, but the prosecutors have acted fairly wisely and with restraint in most of the cases. After all, we have a system that still operates after a torrent of leaks. It has very rarely resulted in prosecutions.

Judith Miller

The Washington Post, one of the few papers that can still afford to do investigative reporting, which is very expensive (in part because you have to hire so many lawyers) and very dangerous, tried looking at the issue Judge Posner raised about whether the government is classifying more, how many people have top security clearances, and how many documents are classified. After two years of work, The Post could not come up with a figure on how much our country was spending to protect national security. It did find, however, that more than a million people in this country have top security clearances, and they are the ones who do much of the classifying. I think this is a huge problem, and I agree with Richard that it does not have an obvious solution.

Gabriel Schoenfeld

There is a bit of conventional wisdom setting in here about overclassification, and while I agree that it is rampant, we should not be taking the mushrooming numbers at face value. After 9/11, it became clear that we had to impose secrecy on whole sets of categories that we never considered before, largely regarding technical characteristics of objects, such as bridges, buildings, and other civilian structures that we want to protect. For all the bureaucratic pressures that Judith and Judge Posner mentioned, I also agree with Judge Posner: this is not a solvable problem. Our search for balance must look in another direction.

Richard Posner

You are saying that before 9/11, bridges were about to fall down, and maybe we knew about it; but now all knowledge about decrepit infrastructure is classified? It sounds like a joke: all of a sudden, someone who asks about the tunnels under the Hudson River is told that the information is classified because of vulnerabilities. If I want to attack, I’ll attack one of these classified civilian structures. This is an absurd world.

Geoffrey Stone

The idea that this is an insoluble problem is not helpful. There is a solution; whether it is a good one or a bad one is the problem. If we do nothing, the solution will be wild overclassification, arbitrary prosecutions of individuals who have embarrassed the administration, punishment of whistle-blowers, and imprisonment of reporters, whenever it is convenient for any particular administration to do so. If that is not an acceptable solution, we must find a better one.

Question

What kinds of carrots and sticks could bring the amount of material that is classified down to a reasonable, workable level? What can we do to change things?

Gabriel Schoenfeld

A number of reforms have been advanced, such as limiting the number of people who have access to the classification stamp and making them write explanations of why they are classifying particular pieces of information. These strategies have all been tried over the years, but bureaucracy has a way of overcoming everything and finding new ways to get around these procedures because there are many incentives to classify information. If you get something wrong, you make it public, and it’s embarrassing – there goes your job, your promotion, your benefits. Or if people get killed, it’s even worse.

Question

Do you think it is WikiLeaks’s responsibility to control what they publish?

Judith Miller

Yes, I do, which is one reason why I am very unhappy with what Julian Assange has done. I have interviewed embassy people and worked with many of the dissidents whose identities were compromised by what he has done, especially the last tranche of disclosures that were published without any vetting. That is irresponsible journalism, but do I think that he should be punished under the Espionage Act for it? No, I don’t. I think responsible news organizations should refrain from using information that would compromise the safety of dissidents and other people whom we should protect.

Richard Posner

What if they are irresponsible? Then there is no sanction, on your view.

Judith Miller

Then don’t buy their papers, don’t advertise in their journals, or shut them down. Wiki-Leaks has been shut down, and Julian Assange is facing other criminal proceedings in Sweden. We have solved that problem for the moment, but there will eventually be another Julian Assange, another WikiLeaks. Each news organization will have to make a judgment about what it feels is responsible reporting. That is the way the system works.

Question

What are the panelists’ views on the recent spate of state laws that are criminalizing the videotaping and recording of law enforcement officials in public as well as prohibiting publication of such footage, when, in fact, officers are able to videotape us and do what they want with it?

Judith Miller

We have three thousand cameras in lower Manhattan alone, so you can no longer assume that when you walk through the streets of New York, you are not being photographed, surveilled, or monitored. I do not like these new laws. If we are living in a surveillance society, surveillance has to work both ways, and the media should be the people’s advocate and get information out.

© 2012 by Geoffrey R. Stone, Judith Miller, Richard A. Posner, and Gabriel Schoenfeld, respectively

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