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Published by The Lawfare Institute
The Washington Post reported last week that the United States government had decided not to prosecute Julian Assange for his role in the massive release of classified State Department cables because “government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists.” For reasons I outlined almost three years ago, I think this is the right decision and the right reasoning. What is remarkable about the episode is the U.S. government’s implicit belief, evidenced in the quotation above, that prosecuting journalists for publishing classified information is unthinkable. This was not always so. In 1950, Congress enacted a law that provided (with emphasis added) that “[w]hoever knowingly and willfully ... publishes ... in any manner prejudicial to the safety or interest of the United States ... any classified information ... concerning the communication intelligence activities of the United States” shall be fined or imprisoned not more than ten years.” (The provision is now found in 18 U.S.C. 798.) The law was supported by the American Society of Newspaper Editors (including The New York Times) as a reasonable national security restriction on the press, and it passed the House and Senate with little controversy. Fast forward to the Pentagon Papers. That famous victory for the press changed its relations with the U.S. government forever and imbued the Press (as I said in Power and Constraint) “with a permanently skeptical attitude about whether the government was telling the truth, a realization of its power to defy the government even on matters of war, and a romantic self-conception of its role in American democracy.” The Pentagon Papers case was about the legality of prior restraints, however, and does not stand for the proposition that the First Amendment forbids prosecution of journalists for publishing classified information. To the contrary, Justice White (joined by Justice Stewart) strongly suggested that journalists could be in some instances be prosecuted for publishing classified information, Justice Blackmun was in “substantial accord,” Chief Justice Burger was in “general agreement,” and Justice Marshall described Justice White’s view as “plausible.” But the U.S. government has never prosecuted a newspaper or journalist for publishing classified information, and in recent years even the theoretical legal possibility of doing so has evaporated. There was talk about prosecuting the NYT for disclosing the Terrorist Surveillance Program in 2005, but the Bush Justice Department never seriously pursued it even though the publication almost certainly ran afoul of the criminal prohibition in 18 U.S.C. 798. (Indeed, it appears that the Bush Justice Department declined even to subpoena reporters notes in connection with the TSP leak investigation). The Obama administration has ramped up prosecutions of leakers and has subpoenaed the notes of a few journalists. But subsequent public pressure in response to these events has led the administration to back down a great deal. President Obama noted in May that he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable,” and Attorney General Holder, in response to the outcry about DOJ’s aggressive subpoena of a Fox News reporter’s phone logs, met with journalists and (further) tightened DOJ rules about subpoenaing reporter notes. The Obama Justice Department’s refusal to even attempt to prosecute Assange for fear of jeopardizing U.S. press freedoms to publish classified information is but the latest piece of evidence that, as I wrote a few months ago, “the public, and thus also the government, are much more accepting today than in the past of the idea that it is a legitimate function of newspapers and journalists to publish classified information, including information related to surveillance techniques, if they can get it.” A further piece of evidence is that hardly anyone in the country, and no one in the government, is arguing that the many journalists involved in the Snowden-related NSA publications be prosecuted even though their actions pretty clearly violate 18 U.S.C. 798. Yet another piece of evidence is the proposed Federal shield law (which would to some degree shield a reporter’s confidential sources from federal subpoenas) winding through the Senate (and criticized in the WSJ today by former Attorney General Michael Mukasey). Why have the norms changed? In part it is because the government has great difficulty maintaining secrets (for reasons I explained in Chapter 3 of Power and Constraint), with the result that journalists regularly publish classified information, including highly classified information about U.S. surveillance techniques. The stigma that once attached to such publications diminishes with each publication, especially when the government does little or nothing to the press in response. At the same time, a good deal of classified information reporting in the last dozen years has disclosed controversial government actions and sparked public debate (and, sometimes, reform). To many people, the ends of these disclosures justify the means – period. Given endless war and an unfathomably large national security bureaucracy and secrecy system built to fight that war, both the press and the public have come to view the press’s role in disclosing classified programs and activities as vital to American democracy – even though the press sometimes makes mistakes and sometimes causes real national security harm. In short, while it is fashionable to say and think that press freedoms are under siege, the opposite is true – at least when it comes to national security reporting. Press freedoms to report about national security matters, including highly classified matters, have never been broader or more secure. To appreciate these freedoms, compare what is happening to The Guardian in the English legal/political system.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
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