Category Archives: Leaks and Classified Information

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

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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.

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 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.

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

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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.

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

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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.

Publishing Secret Government Information Today: Managing Editors of NY Times and Washington Post discuss current practices following performances of Top Secret: The Battle for the Pentagon Papers

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In Top Secret, audiences watch as the Washington Post‘s managing editor Ben Bradlee and publisher Katharine Graham reject their lawyer’s advice to hold off one day on publishing Pentagon Papers material and approach the government to allow officials an opportunity tell them what information from the Papers might be most damaging and necessary to keep secret.

In two recent talkbacks following Top Secret performances, however, the current managing editors of the New York Times and the Washington Post shared with audiences behind-the-scenes stories of how their papers did just that:  ie, approach the government for just such a conversation prior to publishing two of the most important recent news stories that revealed secret, security-related government programs.

In a talkback on March 6, New York Times managing editor Jill Abramson shared the story of that paper’s decision to publish its 2005 stories on the NSA wiretapping program. Rather than publishing those articles without informing the government about its information, as was done with the Pentagon Papers, Abramson described how her paper, after uncovering the program, went to the government for comment and, thereafter, listened to government officials’ requests that the paper not make this program public — including a request made directly to her by then-President George W. Bush. Abramson’s paper eventually did publish its story and make this information public.

Marcus Brauchli, managing editor of the Washington Post, described a similar series of events surrounding that paper’s 2005 stories regarding secret CIA-run prisons, called “black sites,” in European countries.

Does the fact that these papers sought pre-publication comment from the government  represent a retreat from the position of the Post and the Times at the time of the Pentagon Papers’ publication? Or instead, is it that the Times and the Post were enabled to take this responsible approach to publication only because the court precedent in the Pentagon Papers case made it so the papers knew that the ultimate decision to publish was theirs, even if the government requested continued secrecy?

Listen to Abramson – along with fellow panelists Carl Bernstein, legendary investigative reporter; Norm Pearlstine, Chief Content Officer, Bloomberg L.P.; and Geoffrey Cowan, Top Secret playwright and Director, Center on Communication Leadership & Policy – here:

Audio: Top Secret 03.06.10 Abramson, Bernstein, Pearlstine Panel Discussion

And listen to Brauchli – along with fellow panelists Brian Ross, Chief Investigative Correspondent, ABC News; Tim Weiner, Pulitzer prize-winning Journalist and Author, Legacy of Ashes: The History of the CIA; and Carroll Bogert, Associate Director, Human Rights Watch – here:

Audio: Top Secret 03.04.10 Brauchli, Ross, Weiner, Bogert Panel Discussion

Contextualizing the Pentagon Papers Publication with Todd Gitlin, Steve Wasserman, and David Rudenstine

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In a talk following the March 3 performance of Top Secret, Professor Todd Gitlin of Columbia and Steve Wasserman of NYU’s NY Institute for the Humanities, built on the themes discussed in the below post regarding seeing the publication of the Pentagon Papers as an act of courage or protest.

In the talk, Wasserman tied the publication of the papers by the New York Times and the Washington Post to the larger acts of protest going on against the Vietnam War at the time, including prior publication of leaked documents and information by more radical “alternative” presses against which, Wasserman theorized, the Times and the Post were in competition to break news of the stories behind the war.  Wasserman described this spirit of protest as a “tide that lifted all boats,” leading to the Times and Post‘s publication.

Gitlin went further, contextualizing Ellsberg’s leaking of the Papers and the Times and the Post‘s acts of publication, not only within the anti-war movement, but within the larger spirit of protest that captured the nation and inspired many of its journalists throughout the 1960s and 70s. Gitlin tied the spark of this protest spirit to the civil rights movement, through which many Americans saw a rupture between what they saw on the ground and  information they received from the government and authorities — a rupture that permitted them to challenge the received information and authority.

For more, check out Gitlin’s book The Sixties: Years of Hope, Days of Rage and listen to the audio of the March 3 talkback, which also features commentary on the court system and behind-the-scenes stories about the Pentagon Papers case from David Rudenstine, Sheldon H. Solow Professor at Cardozo Law School and author of The Day the Presses Stopped, a definitive and highly-detailed history of the Pentagon Papers case.

Audio Recording of 3.3.2010 Discussion Now Available:

Audio: Top Secret 03.03.10 Wasserman, Gitlin, Rudenstine Panel Discussion

Washington Post op-ed on Press Disclosure and the Media as a Counterpoint to Government

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In this op-ed in yesterday’s Washington Post, Katrina vanden Heuvel (editor of the Nation) invokes the Pentagon Papers to ask questions about the role and effectiveness of newspapers today in using government information critically, especially as a means to critique the government.  Comparing the super-structure governing the press at the time of the Pentagon Papers events to the structure of media today, she notes:

It is worth wondering whether News Corp. or Disney, Time Warner or General Electric would take the same risk that Times publisher Arther Ochs Sulzberger took with the Pentagon Papers and expose the government that taxes, regulates and monitors them.

Noting that today, a leaker of something like the Pentagon Papers could just publish such material on the web (and indeed, Pentagon Papers leaker Daniel Ellsberg has said he would do just that), vanden Heuvel asks whether the internet can do what the media might not, but has her doubts.  As she puts it:

“Can the Web fix the problem? In her three-and-a-half-star review of the Ellsberg documentary, The Post’s Ann Hornaday keenly observes: ‘Contemporary Web-centric media culture, with its proliferation of voices and reigning ethic of decentralization, makes everything equally important and unimportant, with each bit and byte of information just another bee to be herded, heeded or tuned out. Had the Pentagon Papers first been published on the Web, one wonders, would they have been all the more easily marginalized or ignored?’ Indeed.

So vanden Heuvel concludes that the press may have a unique ability to get the public’s attention in a way that the web does not, and therefore calls on the press to increase its courage in challenging the government and channeling public attention.

Is vanden Heuvel correct in implying that had the Pentagon Papers been posted on the web, something would have been lost?  By leaking them to newspapers around the country, Daniel Ellsberg facilitated a media bonanza – as the courts moved to prevent one paper from publishing, the next started, leading to a rolling series of front page stories that demanded public attention over several weeks.

However, for each of those front-page stories to occur, a new newspaper had to make the decision to publish, risking legal and financial consequences (as dramatized in Top Secret).  Would the papers make the same decision today? Can non-traditional media like Talking Points Memo, the Drudge Report, or the Huffington Post command public attention as the New York Times and the Washington Post did at the time they published the Pentagon Papers?

UPDATE: vanden Heuvel continues the debate on the Nation editor’s blog here.

Ellsberg Documentary Released; Nominated for Oscar; Catch it in NYC at Cinema Village

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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.  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.  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.

New Pentagon Papers?

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A recent piece in Slate (“I Want My Pentagon Papers!”) asks whether a recent New York Times article on a report by RAND Corp. regarding the Iraq war planning would be equivalent to a modern-day Pentagon papers, and questions whether the Times should release full the text of the report, and the Daily Kos asked the same question about a recent Pentagon Report that characterized the war as a ‘debacle’.

Meanwhile, the Top Secret tour wrapped up a performance at Penn State University (video), and one at the University of Pennsylvania that was met with acclaim by the Philadephia Inquirer and other outlets . The show’s final performance after its 23-city tour will be in Los Angeles this March. The issues explored by this docudrama take on an even deeper resonance as Congress debates secrecy in the reform proposals and liability implications for the nation’s wiretapping programs, as the executive enacts cuts in funding for the ombudsman position of the recently reformed FOIA system, and as presidential candidates debate ways to break the current culture of secrecy.

Former CIA Director Hayden Addresses CFR

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Secrecy News filed this report on General Hayden’s address:

Unauthorized disclosures of classified information in the press led to the imprisonment of a CIA source and other damaging consequences, said Central Intelligence Agency Director Michael Hayden in a speech last week. “Some say there is no evidence that leaks of classified information have harmed national security. As CIA Director, I’m telling you there is, and they have,” Hayden told the Council on Foreign Relations. “Let me give you just two examples:  In one case, leaks provided ammunition for a government to prosecute and imprison one of our sources, whose family was also endangered. The revelations had an immediate, chilling effect on our ability to collect against a top-priority target.” “In another, a spate of media reports cost us several promising counterterrorism and counterproliferation assets. Sources not even involved in the exposed operation lost confidence that their relationship with us could be kept secret, and they stopped reporting.” “More than one foreign service has told us that, because of public disclosures, they had to withhold intelligence that they otherwise would have shared with us. That gap in information puts Americans at risk.” “Those who are entrusted with America’s secrets and break that trust by divulging those secrets are guilty of a crime. But those who seek such information and then choose to publish it are not without responsibilities.”

In his comments on unauthorized disclosures, Director Hayden did not address wrongful withholding of information, and did not acknowledge any reasons why American might be skeptical of CIA disclosure policies. “CIA acts within a strong framework of law and oversight,” he said. While leaks have been a perennial problem from the government’s point of view, it does not follow that new legislation to combat them is a fitting solution. “I am not aware of a single case involving the unauthorized disclosure of classified information that would have been prosecuted but could not be because of the lack of statutory coverage,” said Attorney General John Ashcroft in testimony prepared for the Senate Intelligence Committee in 2001. The Ashcroft testimony, dated September 5, 2001, represents a missing link between the testimony of Janet Reno on the same subject on June 14, 2000, and a subsequent report to Congress on leaks that was submitted by Mr. Ashcroft in October 2002. The testimony was approved by the White House Office of Management and Budget, according to a handwritten notation on the document, but the scheduled Intelligence Committee hearing was cancelled and the Ashcroft testimony was never delivered. A copy of the text was obtained under the Freedom of Information Act by Michael Ravnitzky.