The Blog

US Consul General in Shanghai discusses Top Secret

In this short clip, the United States Consul General in Shanghai talks about the timeless message of Top Secret in a toast at a reception for the Top Secret cast and team at his apartment.

Cowan’s play on press freedom completes tour in China

Top Secret: The Battle for the Pentagon Papers, a docu-drama co-written by CCLP director Geoffrey Cowan and the late Leroy Aarons, was performed in China in November and December 2011. The L.A. Theatre Works production was performed in Shanghai, Beijing, and Guangzhou. The tour was sponsored by the U.S. Embassy and the USC Annenberg School for Communication & Journalism. Top Secret was last presented during a successful Off-Broadway run at New York Theatre Workshop in 2010.

This China production of Top Secret was directed by award-winning director Stephen Sachs. The cast included well known actors from stage, screen, and television including Henry Clarke, JD Cullum, James Gleason, Nicholas Hormann, Amy Pietz, Russell Soder, Josh Stamberg, Peter Van Norden, Steve Vinovich and Tom Virtue.

In conjunction with performances, CCLP presented post-performance discussions with Cowan and other special guests in partnership with China’s leading law and journalism schools. This provided a valuable opportunity to contextualize the content of the play, which is authentically American, within Chinese society.

In addition to the performances and discussions, Cowan delivered the prestigious F.Y. Chang lecture, a joint program of Peking University Law School, Tsinghua University Law School and the Harvard University Law School East Asian Legal Studies Program.

Links to coverage:
Voice of America
New York Times
Los Angeles Times

Tour Details

November 21 – 26, 2011 / Shanghai
Seven performances in the Shanghai Dramatic Arts Center’s Annual International Contemporary Theatre Festival
Panel discussions with Cowan and NYU Shanghai public interest law professors and Fudan University School of Journalism.
One performance at the Peking University (PKU) School of Transnational Law as part of the celebrations in honor of PKU Shenzhen’s 10th Anniversary;
Panel discussions, lectures, and workshops with bilingual law students, law professors, and local community led by law school Dean Jeffrey Lehman and Cowan.

November 29 – 30, 2011 / Guangzhou
Two performances at Sun Yat-Sen University
Panel discussions with Cowan about the role of journalists and journalism in society

December 1 – 5, 2011 / Beijing
Four performances at the Beijing Municipal Bureau of Culture’s Annual International Theater and Dance Festival
Panel discussions and lectures at the Comparative Law Program at Renmin University of China Law School; Peking University; Tsinghua University
Panel discussions with the American Bar Association.

Wolf, Neuborne, Marshall Reflect on Implications of Pentagon Papers Story for Journalists and Law Today

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

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.

Audio: Top Secret 3.27.10 Wolf, Neuborne, Marshall

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 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.

A Federal Shield Law: Protecting the Press and Their Sources, but at What Cost?

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.

In 2009, the Free Flow of Information Act passed in the House and in the Senate Judiciary Committee, and in February 2010 Sen. Arlen Specter (D-PA) introduced it again in the Senate.

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 “solution 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.

Ellsberg, Gelb, Goodale, Lemann Reflect: Where are the Pentagon Papers of Today?

Following the March 16, 2010 performance of Top Secret: The Battle for the Pentagon Papers, a post-show discussion hosted by the Columbia Journalism Review reunited some key participants in the Pentagon Papers story: Daniel Ellsberg, former military strategist and consultant at the RAND Corporation, who went against the written and unwritten rules of his profession when he leaked the Pentagon Papers to the press in 1971; Leslie Gelb, one of the main compilers of the Pentagon Papers, later a journalist and diplomat who also led the Council on Foreign Relations; and James Goodale, former in-house counsel at the New York Times.  These participants were joined, from the Journalism School at Columbia University, by Nicholas Lemann, Dean and Henry R. Luce Professor, and Victor Navasky, Chairman of the Columbia Journalism Review and Delacorte Professor of Journalism, who moderated the discussion.

Audio: Top Secret 03.16.10 Panel Discussion Ellsberg, Gelb, Goodale, Lehman, Navasky

In a lively evening, these panelists responded to questions from the audience and each other – with one highlight coming when Goodale, who had read the supposedly “top secret” papers (as counsel to the Times) when the Times obtained them, asked Gelb a question Goodale had wondered about since the 1970s: was there really any basis to mark the Papers and so many other documents “top secret”?  Gelb responded that much classification while he was at the Pentagon resulted more from a general culture of classification at the Pentagon than from any page-by-page analysis of a genuine threat posed by the papers’ release.

Perhaps the most difficult questions of the night, however, were not those about the events of the Pentagon Papers era, but those the panelists themselves raised about the state of journalism and foreign policy today.

When asked: where are the Pentagon Papers of Afghanistan?  Ellsberg challenged the U.S. government and the audience by positing that such materials couldn’t be disclosed soon enough and that they would read much like the Pentagon Papers: tracing U.S. involvement in Afghanistan back to earlier U.S. involvement there, and revealing that the U.S. troop commitment necessary to end our involvement will be much larger than is generally understood.

In support of his evaluation, Ellsberg cited the example of Matthew Hoh, a senior U.S. foreign service officer in Afghanistan who resigned publicly in protest against U.S. policy there.  While praising Hoh’s controversial actions, Ellsberg noted that Hoh’s resignation could have been more powerful if Hoh had taken documents with him for public release.

But would such “Afghanistan papers” get the public attention Ellsberg seeks?  When Ellsberg asked how many audience members had read the “Eikenberry cables” – internal state department cables containing Ambassador Karl Eikenberry’s strong reservations about General Stanley McChrystal’s recommended course in Afghanistan – only a handful of audience members raised their hands, even though the cables were reported on extensively and eventually posted by the New York Times.  Ellsberg exhorted the audience to think critically about Afghanistan and to take action to lead the nation to do the same.

The need for such critical thinking was supported further when Gelb shared his reflections on the “domino theory” that had, in his opinion, undergirded U.S. foreign policy decisions in Vietnam and which may still be at work today motivating much of the thinking behind the U.S. presence in Afghanistan.

Turning to the role that today’s journalists should play in reporting on foreign policy and other topics, Lemann noted that the most prominent recent stories about national security issues (including the Times reports on NSA wiretapping and the Washington Post reports on CIA secret prisons) resulted not from the publication of leaked documents, but from the work of journalists to slowly uncover and piece together the details of a secret government program.

To encourage the type of critical reporting that Ellsberg and others would seem to call for, therefore, Lemann stressed that media would require additional support to build and maintain repertorial resources, including journalistic staff and foreign bureaus – a topic also discussed in and other questions raised in this panel discussion!

Center for Public Integrity Hosted Discussion Reflects on Investigative Journalism Then and Now

In the final scene of Top Secret: The Battle for the Pentagon Papers, George Wilson points out that the Post‘s court victory allowing continued publication of the Pentagon Papers was especially sweet because the strong precedent it created could help protect journalists at smaller papers that lacked the Post‘s resources to go to court themselves.  In light of the declining resources and profitability of the news business, one naturally wonders do media outlets today, especially newspapers, have the resources to fight court battles like those depicted in Top Secret?

The Center for Public Integrity‘s post-show panel on March 11 explored this question, but also raised questions about another impact a lack of resources may have on journalism: less resources available for long-range and deeply investigated stories.

In reflecting on differences between investigative journalism today and at the time of the Pentagon Papers case, panelist Bill Kovach, former New York Times reporter and current Chairman, Committee of Concerned Journalists, commented that the expertise and investigative work displayed in researching stories on the Pentagon Papers is still necessary to produce rigorous and cutting-edge reporting today.  As the profitability of print media declines, however, Kovach wondered: are there still sufficient resources to support detailed, time- and resource-intensive reporting?

Some U.S. government departments, he noted, like the Department of Agriculture, no longer have a reporter assigned to cover them every day.  Without this daily coverage, panelist Audio: Top Secret 3.11.10 Kovach, Cowan, Coronel Panel Discussion

Listen to the audio above for the Center for Public Integrity’s panel discussion, including Kovach’s story about how he placed a surreptitious call to rent one of only 4 hi-speed xerox machines in Cambridge so that Times staffers could copy their set of Pentagon Papers.

NPR on Top Secret: The Battle for the Pentagon Papers

NPR’s Margot Adler filed this report on the current New York Theatre Workshop production of Top Secret: The Battle for the Pentagon Papers.  Download the audio here.

Adler quotes from the March 3, 2010 post-show discussion with David Rudenstine, Todd Gitlin, and Steve Wasserman, in which these scholars contrasted the historical context in which the play takes place with the different political climate that exists today.

Re-Understanding the Pentagon Papers and Other Secrets? New Law Review Article Proposes New Framework for Government Secrecy

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.  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.  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.

Listen to Nixon’s Response to the Pentagon Papers’ Publication at National Security Archive Blog

Nate Jones at the National Security Archive Blog just put up and you can’t rely on their judgment. And the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants [them] to do even though it’s wrong. And the president can be wrong.

Jones notes that

In time for Sunshine Week, the 2010 Oscar-nominated documentary “The Most Dangerous Man in America” (which relied upon National Security Archive documents) has re-raised the issues of government secrecy, national security, and which types of information the American public has the right to know.

We’d add that Top Secret: The Battle for the Pentagon Papers does the same.