Listen to the speech here: “National Security vs. Free Speech: An American Case Study”
A copy of the speech, edited for publication, can be downloaded by clicking on the image below:
Listen to the speech here: “National Security vs. Free Speech: An American Case Study”
A copy of the speech, edited for publication, can be downloaded by clicking on the image below:
The recent tour of Top Secret in China has received attention from media outlets all over the world. Below are links to the coverage:
Chinese Allow Play on Pentagon Papers, but Not a Talk About It
The New York Times
December 2, 2011
Pentagon Papers still causing controversy 40 years on (in China)
Los Angeles Times
December 3, 2011
The Pentagon Papers, the Press, and Beijing
December 9, 2011
In Beijing, you just can’t chat about things “Top Secret”
Shanghai Scrap, Bloomberg
December 3, 2011
American Play Center on Free Speech Tours China
Voice of America News
December 5, 2011
STL Students Attended a Performance of “Top Secret”
Peking University School of Transnational Law
November 30, 2011
PKU cancels talk after free speech play
December 4, 2011
Le pari (in)sense d’une troupe de theatre americaine en Chine
December 9, 2011
On March 27, the final Spring 2010 Top Secret Talks discussion brought audiences a nuanced reflection on many of the legal and journalistic forces at play behind the Pentagon Papers story.
Joining for this panel discussion were: the Honorable Mark L. Wolf, Chief Judge, U.S. District Court, District of Massachusetts and former First Deputy U.S. Attorney and Special Assistant to the United States Atorney General; Burt Neuborne, Inez Milholland Professor of Civil Liberties at New York University and Legal Director of the Brennan Center for Justice who also represented Pentagon Papers leaker Daniel Ellsberg in his trial on federal espionage charges; and Joshua Marshall, leading online journalist and founder of Talking Points Memo and TPMCafe.com.
In a discussion that brought together many of the themes explored in prior Top Secret Talks, the panelists reflected on how the legal questions raised by the Pentagon Papers provide guidance for both the conduct of journalists and resolution of legal policy questions today.
To Marshall, the recent federal prosecution of I. Lewis “Scooter” Libby, Jr. and the related contempt proceeding against New York Times reporter Judith Miller provided new context for understanding the high stakes faced by the individuals who leaked and reported on the Pentagon Papers. Witnessing both the government’s decision to prosecute Libby for allegedly leaking confidential information to the press and the jailing of Miller for refusing to disclose her source, brought home to Marshall the full panoply of consequences that could attach to gathering and reporting on confidential government information.
Marshall’s comments revealed that concern about imprisonment could certainly lead some journalists today to think twice about publishing leaked confidential documents. Perhaps drawing on his experiences as both a judge and a prosecutor, Chief Judge Wolf noted that while some might call this a “chilling effect,” others might call it a “deterrent effect” — with deterrence being an oft-cited and generally proper goal of criminal law and prosecutions. Especially in matters of national security, might it be appropriate for journalists and government employees to think carefully about all possible consequences when handling government that has been identified as confidential?
To tie these policy questions to now-pending legislation, Chief Judge Wolf asked the other panelists for their thoughts on a proposed federal shield law, a law summarized on this blog here.
Although a journalist and a civil liberties lawyer might be expected to come out in favor of a law designed to shield journalists from disclosing confidential sources, both Marshall and Neuborne — perhaps to everyone’s surprise — came out against a federal shield law.
Marshall opposed the idea because it seemed to artificially distinguish between “journalists” and other members of the public at a time when the internet makes that distinction less clear. Neuborne, on the other hand, opposed the proposed shield because he felt it could operate to protect the government by allowing government officials to selectively disclose information to journalists knowing that those journalists would not have to disclose their sources. In fact, the source Judith Miller was refusing to identify was a government source: Mr. Libby.
Listen to the audio above for further comments and questions from these panelists and audience members on the duties of journalists to evaluate received leaks and information, and on policy questions about government regulation of the internet and on the differences between legal protection of government secrets and trade secrets.
For the press to keep the public informed, the press itself must be informed. This seems an uncontroversial statement – but supporters and opponents of a federal shield law have different takes on its implications.
Proponents of such a law argue that the press is better informed when journalists can assure their sources anonymity particularly when those sources have highly sensitive information, perhaps pertaining to the government. As the Los Angeles Times argues:
The Times and other major news organizations would prefer that every source for a news story be identified. But whether the subject is the Los Angeles Police Department’s past spying on political leaders or the rendition of suspected terrorists to black sites abroad, some vital reporting is possible only if sources are promised anonymity. Without it, they won’t share information with the media.
As the Times notes, this argument and others in favor of a national shield law have been made since the 1970s, when the Supreme Court held, in Branzburg v. Hayes, that the First Amendment did not prohibit a reporter from being forced to disclose his sources. While almost all states have either statutes or cases preventing forced disclosure, no such shield exists at the federal level.
If such a shield law does pass and watchers deem it more likely to pass under President Obama’s administration than before” will it give journalists and their sources the security they want?
Last fall, the White House’s proposed version initially caused an outcry among journalists, who believed the administration had abandoned Obama’s prior promises. As the Washington Post wrote:
. . . the White House sent the Judiciary Committee legislative language providing little protection for journalists. It seemed to betray President Obama’s promise to support a judicial balancing test between the public interest in newsgathering and the need to compel disclosure of a reporter’s sources.
The White House then proposed a compromise that seemed to satisfy the major news outlets. As the Washington Post explained:
Under the latest proposal, in both civil and criminal cases the government (or another party seeking disclosure) would have to demonstrate that the confidential information it seeks from a journalist is essential to resolving the case and that it has exhausted all reasonable alternative sources. Judges would weigh the public interest in thorough newsgathering against the interest in disclosing the source. The balancing tests are calibrated depending on the nature of the case . . . . The balancing test also covers cases involving leaks of classified information (with the journalist again bearing the burden of proof), unless the information sought would be needed to stop a terrorist attack or significant and articulable harm to national security, in which case disclosure would be compelled. As in previous versions, the statute would not protect anyone who is affiliated with a terrorist organization or who has been designated a terrorist by the federal government.
It is difficult to find the appropriate line between the public’s interest in newsgathering and the public’s interest in protection of confidential government information, which is what opponents of the a federal shield law argue is at stake. Michael Hayden, former CIA and NSA director, calls the proposed law a â€œsolution in search of a problem. He criticizes a bill that he argues would:
. . . shift . . . national security responsibility from an elected (and accountable) president, who may have to answer for an attack on the country or its troops, to a judiciary whose role is generally not to make national security policy or balance risks to the country’s security.
At the same time, however, Hayden writes that he is not insensitive to the principles of the First Amendment, to the role of the press in our democracy or to the delicate balance and inherent tension between security and openness. It remains to be seen what Congress sensitivity to this tension will be.
The Stanford Law Review‘s January 2010 issue includes Deep Secrecy, 62 Stan. L. Rev. 257 (2010), an article by recent Yale Law School grad David Pozen that proposes a new theoretical framework for understanding government secrets (pdf of article; earlier article draft on SSRN).
According to the Review’s abstract:
This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.
After tracing some of the existing constituional, structural, and theoretical analyses of government secrets, Pozen applies his new framework to point out that the deeper a secret, the smaller the group of people (and possibly dissenting views) available to deliberate about it.Â Pozen notes that government can still keep the substance of some government actions as “shallow secrets” while allowing additional debate and deliberation, concluding that:
Even among the subset of government secrets about which the public knows nothing . . . the comparative insularity of the deeper secrets can pose a special threat to good governance, to liberal democratic values, even to the Constitution. We cannot and should not seek to prevent the executive branch from keeping secrets. We can and should seek to have them kept as shallow as possible.
Along the way, Pozen evaluates a number of the secrets kept by the Bush administration, including many that are discussed elsewhere on this website.Â For Pozen’s take on the Pentagon Papers era, see p. 292 of the article where he describes the Vietnam and Watergate era as one of the first times in American history where scholars began to see the government’s asserted need for secrecy as implicating constitutional values.
Following Top Secret‘s second preview performance on February 25, USC Annenberg’s Center on Communication Leadership & Policy presented the first in what will be a twelve-part discussion series regarding the contemporary questions raised by the play.
UPDATE: Audio Recording of 2.25.2010 Discussion Now Available:
This February 25th talk featured a lively discussion between Top Secret playwright, Geoffrey Cowan, who is a former Dean of USC Annenberg’s School of Communication and former director of Voice of America and Mitchell Stephens, professor of journalism and communication at NYU’s Arthur L. Carter Journalism Institute, and author of, among other things, A History of News.Â The discussion was moderated by Robert Shrum, veteran political consultant and author of No Excuses: Concessions of a Serial Campaigner.Â Shrum is now a Senior Fellow at NYU’s Robert F. Wagner Graduate School of Public Service, which co-hosted the talk.
Shrum started off the discussion by noting that publication of the Pentagon Papers, and the Watergate scandal that soon followed, ushered in an era in American culture defined by a “presumption against secrecy,” during which the American public expected that most information about government operations would be publicly available.Â Given the events of 9/11 and our current war on terrorism, Shrum asked, has that “presumption against secrecy” and any corresponding openness in government eroded today?
Cowan agreed that threats of terrorism and other factors may be eroding this presumption, citing the the Obama administration’s recent actions in first agreeing and then declining to release so-called “torture photos” sought by the ACLU.Â The administration was criticized for appearing to “go back on” initial promises of increased transparency when it later supported Congress’s efforts to tighten the federal FOIA law to avoid any requirement to disclose the materials.Â Cowan noted, however, that a pull toward secrecy shouldn’t be associated with any particular administration, but rather is a natural tendency of those in power.
Shrum turned the discussion to a question brought into sharp focus by the events of Top Secret: whether and when journalists’ efforts to break through government secrecy can actually threaten national security.
Cowan and Stephens’ opinions here converged regarding whether journalism often poses a real threat to national security — concluding notÂ — but presented possibly differing interpretations on why that might be the case.Â Despite the alleged national security threat posed by publication of the Pentagon Papers, Cowan and Stephens agreed that almost no historical examples easily came to mind of stories published by the US press that actually caused a severe threat to national security.
In reflecting on this lack of examples, Cowan emphasized the possibility that journalists do often break stories that include secret or security-related information, but may find reporting tactics that make their stories less threatening such as voluntary withholding of stories until information is less threatening and sensitive reporting that reveals information only to the extent necessary to tell the story.Â As examples, Cowan pointed to the 2005 New York Times series that exposed the NSA’s involvement in a secret wiretapping program, which revealed this confidential program, but was held by the Times for over a year before its release, and to Dana Priest’s series on CIA “black sites,” which included sufficient detail on this program to influence public opinion while withholding the names of the particular countries involved.
The continued possibility for this kind of reporting was called into question by one audience member who, reacting to the dramatization of editorial and publisher’s discretion displayed in Top Secret, asked whether that kind of “curating” of journalism would be continued on blogs and other non-traditional media sources.Â The panelists noted that online media, while breaking some stories about politicians’ personal lives, also had yet to break a truly threatening national security story.Â When they have the chance, will they employ some of the tactics Cowan identified?
Stephens saw the lack of news stories threatening national security not as a sign of sophisticated reporting, but instead as a possible indication of timidity in the press about uncovering and disclosing government secrets.Â Stephens noted that very few articles in this list of the Top 100 Works of Journalism included revelations of or inquiry about government secrecy, and asked whether this may be because the press behaves too conservatively in the face of possibly secret information.
Shrum saw echoes of these concerns in the recent coverage of the lead-up to the Iraq war in which selectively leaked information painted a certain picture about the existence of weapons of mass destruction in Iraq, a picture which was not generally questioned in the media.
For Stephens, the theme of Top Secret was best embodied by a line said by H.R. Haldeman in the play’s second scene regarding the Pentagon Papers publication (a line actually said by Haldeman and recorded on Nixon’s White House taping system): “For the ordinary guy, all of this is a bunch of gobbledygook. But out of the gobbledygook comes a very clear thing, which is: You canâ€˜t trust the government, you canâ€˜t believe what they say and you canâ€˜t rely on their judgment.”Â To Stephens, the story of the Pentagon Papers “is a story about government cynicism.”Â The material in the papers taught the reporters and then the public at that time to be cynical, and therefore, more challenging and critical of government, something which Stephens does not see as often today.
Stephens calls on the media to err on the side of challenging the government’s version of events.Â In slight contrast, Cowan’s recent examples of reporting that discloses secret programs in a manner that is sensitive to national security concerns implies that good journalism can often result from some trust and cooperation with the government.
Shrum recalled a story from the Kennedy administration when the New York Times had the Bay of Pigs story, but Kennedy officials convinced the Times not to publish.Â After the invasion, according to Shrum, members of the administration said they wished the Times had published the story.Â Could the Times have made a better decision at the time?Â And how would a paper, or the government make this decision today?
This story and the panel as a whole highlighted the importance of a balance between government secrecy and tough inquiry and investigation by the press.Â For journalists’ efforts to report sensitively to work, the press must also engage in the courageous and critical reporting Stephens seems to be looking for that will keep the government on its toes.Â If the government can expect press scrutiny, it will be more likely to make decisions that would withstand such scrutiny and merit the public’s trust if revealed and when the press and the public can put some trust in the government to make such decisions, then the public can trust a sophisticated press to cooperate with the government and report sensitive information in a way that doesn’t threaten national security.
As the latest production of Top Secret nears its March 2010 opening at New York Theatre Workshop, another retelling of the Pentagon Papers story is also hitting theaters.Â The Most Dangerous Man in America, which opened at select theaters in January 2010, is a documentary focused on the story of Daniel Ellsberg, the former high-level Defense Department analyst and consultant who leaked the Pentagon Papers to newspapers around the country.
The documentary, narrated by Ellsberg, traces his personal journey from as a Marine and Vietnam strategist who becomes convinced, in part because of the material he read in the Pentagon Papers, that the Vietnam War was a mistake.Â As he says in the film, Ellsberg at first felt “half a radical,” but soon realized that his special access to secret documents placed him in a unique position to act on his sense of responsibility to help end the war.
By telling the Pentagon Papers story from Ellsberg’s perspective, The Most Dangerous Man in America provides an excellent complement to Top Secret which dramatizes aspects of the same story from the perspective of the Washington Post.
On Tuesday, February 2, the Academy of Motion Picture Arts and Sciences announced the film’s nomination for Best Documentary Feature. Those seeing the New York Theatre Workshop production of Top Secret, can catch the film at Cinema Village, 22 East 12th Street, New York, NY.
On Wednesday evening, Congress passed the first FOIA Reform bill in a decade to the praise of freedom of information groups. Meanwhile, the Senate is working on a FISA reform bill that it will seek passage for during the beginning of next year, and the CIA has agreed to work with the House on the ‘torture tape’ investigation.
As the national tour of Top Secret moves from Hampton, Va. andÂ Collegeville, Minn., excitement is building in upcoming locations, such as Oxford, Ohio , University of Nebraska,Â Scottsdale, Ariz.,Â Tucson, Ariz., and the University of Arkansas.Â At the same time the production is taking off at full steam, the U.S. House debated and passed a reporter’s shield bill, which now makes its way to the Senate. The Senate Judiciary Committee recently approved its own bill, and now the reconciliation process will take place despite White House promises to veto. The Citizen Media Law Project analyzes the merits of each bill.
“It’s the Secrecy, Stupid” was the title of Yale Law School Professor Jack Balkin‘s prominent legal blog post about the FISA-NSA wiretapping reform bills that now seem to have passed their hurdles in the Senate, having been favorably reported out of the Select Committe on Intelligence. The reforms, would give retro-active immunity to telecommunication companies, who, as the Washington Post revealed (but the companies themselves refuse to confirm or deny) engaged in wiretapping even before receiving explicit congressional authorization to do so. The proposals have been widely criticized by legal experts, but seem likely to pass Congress and be signed into law this week. UPDATE: Harper’s provides an insightful analysis of Balkin’s blog post and Marty Lederman‘s reply in light of the recent refusal by National Intelligence Director McConnell to release National Intelligence Estimates. Meanwhile, even Congressional Committees are having difficulty obtaining information about the administration’s policies on the telecommunication immunity measures.