Category Archives: Wikileaks

A history of journalism in two minutes?

By Christopher B. Daly

That’s what the new film “The Fifth Estate” promises in its opening sequence. According to a story in the NYTimes, a specialty production company in Venice, Calif., known as Prologue, has done just that. Since it takes me 15 weeks, lecturing twice a week for 80 minutes at a pop (or, about 2,400 minutes a semester) and I don’t get through all my material, I guess my hat’s off to them.

Can’t wait to see “The Fifth Estate,” which is a dramatization of the story of Wikileaks founder Julian Assange. I better not be at the popcorn stand or in the bathroom when the movie starts, or I could miss the whole history of journalism.

A still from the opening sequence of "The Fifth Estate"

A still from the opening sequence of “The Fifth Estate”

If you’ve seen it, please leave a comment and let us all know what you thought.

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Filed under Journalism, journalism history, Wikileaks

DO JOURNALISTS HAVE A RIGHT TO PROTECT THEIR SOURCES? A federal appeals court rules – wrongly – that they do not.

By Christopher B. Daly

A federal appeals court recently dealt a blow to press freedom by ruling that there is no legal basis for an American reporter to protect the identity of a confidential source if a prosecutor demands to know it. This is not the last word on the subject, but still, it was a setback because the ruling last Friday came from the 4th U.S. Circuit of Appeals, the level just below the Supreme Court. (Not only that, but the 4th Circuit has jurisdiction over Virginia and Maryland, which covers a lot of federal agencies, including the Pentagon and the CIA.)

The case is important because it is part of a recent upsurge in federal cases attempting to stop “leaks” of classified information by intimidating journalists. The case is also important because it strengthens the hand of the Justice Department and federal prosecutors (at least in the 4th Circuit) to chill whistle-blowers, pressure journalists to give up their sources, and jail those reporters who won’t do so.

The July 19 ruling runs to 118 pages. Below is my analysis of all the major points made in both the majority ruling and the dissent. Overall, I find that the majority ruling was arbitrary, biased, and flat-out wrong. I believe that the dissent has it right.

I am approaching this ruling not as a lawyer, judge, prosecutor, or law professor. My main credential is one that I share with all the parties (including the judges) in this case: CITIZEN. I believe I have a right to read the Constitution and the statutes and the evidence, draw my own conclusions, and share them with you. I approach this as an advocate for press freedom. To be specific, I am an advocate of the public’s right to know what our government is doing. To that end, press freedom is instrumental, but it is also incidental. The real purpose of the First Amendment is to ensure that we, the people, would always have the means to gather and share the information we need to govern ourselves and prevent the resurgence of tyranny.

[Some brief background: The case is U.S. v. Sterling. It is a criminal case against Jeffrey A. Sterling, a former CIA officer who has a major beef with the agency. Sterling, who is black, has charged the CIA with racial discrimination, and he has a conflict with the agency over material he would like to publish in his memoir. The CIA claims that he divulged classified information to a journalist in violation of the Espionage Act of 1917, as amended. Sterling maintains that he is a target of CIA retaliation because he divulged a botched operation. The journalist in question is James Risen, a Pulitzer Prize-winning expert on national security and veteran reporter for the New York Times. He is also an author of several books, including the one at issue, State of War (2006, Free Press). In the book, Risen revealed details about a CIA operation aimed at undermining Iran’s nuclear program. Federal prosecutors issued a subpoena ordering Risen to appear before a grand jury and reveal his source. Risen has refused and vows to go to jail instead. The underlying case, U.S. v. Sterling, has yet to come to trial. The 4th Circuit ruling had to do with pre-trial motions in the Sterling case. The constitutional issue is whether, under the First Amendment or some other basis, reporters in America have the right to protect the identity of their sources, even when they are ordered to do so in a criminal case. In other words, do they enjoy a legal "privilege" that frees them from having to give testimony? Do they have a "testimonial privilege"? If so, is it absolute?]

 

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The Circuit Court opinion begins with the majority ruling (in a 2-1 split), written by Chief Judge William Byrd Traxler, Jr. The majority opinion opens with some factual background, covered above.

p. 5

Traxler notes that Sterling was indicted on a charge of illegally disclosing classified information and observes that

 he may have done so in retaliation for the CIA’s decision to terminate his employment and to interfere with his efforts to publish such classified information in his personal memoirs.

So, as to MOTIVE, Sterling is not accused of “aiding the enemy” – unlike, say, leaker Bradley Manning.

p. 6: In 2000, Sterling filed a federal lawsuit against the CIA charging employment discrimination – a classic “disgruntled employee” if there ever was one. These folks are the natural target for reporters.

p. 7: In Oct. 2001, the CIA sacked Sterling.

He was reminded of his legal duty to protect secrets and asked to sign an acknowledgement. He refused.

p. 8: March 4, 2003. Sterling filed a second suit against the CIA, protesting the way they wanted to censor his memoir.

March 5, 2003. Sterling goes to the Senate Intelligence committee and divulges information to staffers about the Iranian intel program.

“Telephone records indicate that Sterling called Risen seven times between February 27 and March 29, 2003.”

Hmmm… wonder how the government got those phone records. Still, no crime there.

One thing that’s clear: Sterling and the agency are developing a world-class hatred for each other.

p. 9: 

“On April 3, 2003, Risen informed the CIA and the National Security Council that he had classified information concerning Classified Program No. 1 and that he intended to publish a story about it in The New York Times. In response, senior administration officials, including National Security Advisor Condoleezza Rice and Director of the CIA George Tenet, met with Risen and Jill Abramson, then Washington Bureau Chief of The New York Times, to discuss the damage that publication would cause to national security interests and the danger to the personal safety of the CIA asset involved in the operation. Several days later, Ms. Abramson advised the administration that the newspaper would not publish the story.”

Worth noting: The government made a reasoned request to protect a current “asset” – which is to say, an active spy. The newspaper agreed. Fat lot of good it did them. You do the govt a big favor and they turn around and screw you.

p. 10: Jan 2006, Risen publishes State of War, in which he used the stuff that the Times would not publish. [Presumably, that “asset” was long gone by then.]

“Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.”

Dec. 22, 2010, Sterling indicted. Subpoenas issued for Risen to testify before grand juries and identify his source.  He moves to quash the subpoena (i.e., make it go away and end his legal problem).

 

p. 12:

“The district court held that Risen had “a qualified First Amendment reporter’s privilege that may be invoked when a subpoena either seeks information about confidential sources or is issued to harass or intimidate the journalist,” id. at 951 (emphasis added), and that the government could overcome the privilege only by meeting the three-part test that this circuit established for reporters’ claims of privilege in civil cases in LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986).”

 

So, in the first round, Risen actually won. The district court judge agreed that the First Amendment protects journalists in most situations. (Hence, the “qualified” privilege. See below.)

p. 13. Oh, and by the way, the government would like to protect the identity of its secret witnesses while forcing Risen to name his. That’s rich, but, of course, they are going to get their way.

p. 15-16: Traxler announces the new bottom line:

 There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”  [emphasis added/ CBD]

As his main precedent, Traxler cites the 1972 Branzburg case, decided 5-4 by the U.S. Supreme Court. On a close call more than 40 years ago, SCOTUS said it could not find a legal “privilege” for a journalist in the First Amendment. In plain English, that means that the news-gathering function of journalism does not extend to protecting sources – at least not when doing so conflicts with the duty of prosecutors in criminal cases to bring “every man’s evidence” into court. The journalists had hoped to establish that – like doctors, psychotherapists, spouses, clergy, and lawyers themselves – members of the public have an interest in knowing that they can confide in any of those people without having their confidences betrayed in open court. I believe that the Branzburg ruling was wrong, if narrowly so, and it has been under attack ever since.

Getting back to the quoted section above, here’s a question: What about a confidential source who does not commit a crime? In that case, the journalist is neither a participant nor a witness to a crime. It’s actually far more common for confidential sources to tell journalists about third parties, which Traxler does not address here. What if the confidential source does not hand over any purloined documents or commit any crime in the journalist’s presence? What if the source merely describes the misdeeds of others?

Moreover, what about a Wikileaks style work-around where the journalist has to protect his/her own identity?

What about anonymous posting (like 18th Century pamphleteers?)

Another alternative: Journalists could decide to live with the Branzburg rules and encourage journalists to go to jail and honor those who do so. We could create a Hall of Fame, or we create a special prize and give them each $1 million for their service to the profession and the general public.

[NB: Traxler also relies heavily on the 2005 Judith Miller case. In that instance, her source – Scooter Libby – was committing a crime in the reporter’s presence (whether Miller realized it or not) by outing Valerie Plame, then an active CIA agent. But what if he were not actually committing a crime?]

If there is no legal/constitutional remedy, maybe there is a technological or behavioral remedy. Journalists could change their technology or their techniques. Maybe they need to improve their tradecraft – safer transfers of documents and data, untraceable meetings, disguises, meetings in other countries, go-betweens, etc., etc.

If they insist on criminalizing journalism, then must journalists learn to act like criminals? The mob always esteemed “stand-up guys” who would take their punishment rather than rat out their associates. Is that the model Traxler is pushing us toward?

Why doesn’t the government do a better job of protecting its own whistleblowers? Why do they have to resort to telling journalists?

p. 25:

“The Branzburg Court considered the arguments we consider today, balanced the respective interests of the press and the public in newsgathering and in prosecuting crimes, and held that, so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must.”

Do I detect a certain amount of glee in these opinions when judges have the chance to uphold the power of prosecutors (and, of course, judges) to compel reporters to do things?

p. 26: Here, Traxler does something of an about-face and says it would be fine to give an alternate reading to Branzburg in civil cases. Traxler would grant a qualified reporter’s privilege in civil cases. It’s just the criminal cases where the law enforcement is transcendent over the public’s right to know. Since when does law enforcement trump all other values, goals, priorities?

[Note that the privilege is always qualified; judges always want to be able to put their thumb on the scale of justice. They say: We are not going to give you something once and for all; any time you want to exercise that right, you have to come into court and beg a judge for it. Thanks a lot!]

p. 27: Traxler calls for a “balancing approach” – which translates into arbitrary judicial discretion as far as I can see. When a reporter is about to talk to a source, is he/she really supposed to project ahead and guess correctly about how that “balancing” is going to turn out in his/her case? Fat chance. That is completely unrealistic.

p. 28: Traxler keeps clinging to this obscure clause in Branzburg that offered remedies at law for journalists who are faced with prosecutions intended to “harass” the reporter or carried out “in bad faith.” What is that about? How often does a court decide that a prosecutor has acted in bad faith? That’s a non-issue, a red herring.

p. 29-30: More on the criminal/civil distinction. But: the fact is, some crimes are petty and some civil actions are momentous. I don’t believe it is true that every criminal matter is by definition more important than any civil matter. That strikes me as dogma (or a device for getting to some desired outcome). Some criminal cases, even felonies, involve small potatoes like selling a couple of ounces of marijuana.

[Let’s all keep in mind The BIG PICTURE in the Sterling case: the CIA pissed off one of its agents, and he went rogue, and they want to crush him. Risen is caught between the two antagonists.]

p. 32: Risen also raised a claim to a “common-law reporter’s privilege.” By “common law” he means law that is made by some fashion other than the Constitution and the acts passed by Congress. Usually, this means judge-made law that results from rulings made over time that produce trends. Traxler begins by citing Branzburg saying no common-law privilege existed. But that was as of 1972. Has the common law evolved since then? (which is the nature of common law, no?)

p. 36: Traxler analyzes the common-law argument, based on Rule 501 in the federal rules of evidence, which was passed by Congress, after Branzburg. In comparing a reporter/source case to a psychotherapist/patient case, Traxler writes:

“Applying Rule 501, the Court weighed the competing interests and concluded that the plaintiff’s interest in obtaining evidence of the confidential communications in the ensuing excessive-force action was outweighed by the patient’s private interest in maintaining confidence and trust with his mental health provider and the public’s interest in protecting that privacy in order to “facilitat[e] the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Id. at 11. As noted above, the Court also relied, in part, upon the fact that a psychotherapist-patient privilege was one of the nine, enumerated privileges considered when Rule 501 was adopted and had found near unanimous support in state laws as well.”

But Traxler misses the point here. The point is that in both kinds of cases, it is the PUBLIC interest that creates the privilege, not the personal or professional one. The public wants to know that psychotherapy patients as a class have a right to seek help from therapists as a class with confidence that the statements they make in therapy will not end up in court with the names attached. The public also wants to know that when they read a newspaper, there is no information missing because sources in general are afraid to approach reporters in general.

The public wants people in general to feel confident in talking to a doctor, lawyer, or clergymember. Likewise, the public wants people in general to feel confident in talking to a reporter.

Also, note: Branzburg did not forbid a journalist’s privilege as some kind of an evil. It just said that court couldn’t quite find it in the First Amendment. Now, if you are determined not to find one anywhere, you won’t. But if you are looking for one, there are a number of places you might find it. Much depends on one’s predisposition, and there are a lot of judges who are not predisposed to trust reporters.

In Traxler’s case, for example, here’s a passage from p. 37:

“Rule 501 thus leaves the door open for courts to adopt new common-law privileges, and modify existing ones, in appropriate cases. But nothing in Rule 501 or its legislative history authorizes federal courts to ignore existing Supreme Court precedent.”

So, the door is open, but Traxler (and his colleague who joined this majority opinion) does not want to walk through it. To my mind, that does not seem to dispose of this issue once and for all. If lower courts don’t make rulings that allow common-law rulings to accrete, how will the common law ever evolve?

BTW, what if judges had to divulge what goes on in-camera? How would they feel about that? What if they could not guarantee the confidentiality of sidebars or in-camera discussions?

p. 40: Traxler has a message for journalists: Even if we thought we could grant a common law privilege, we wouldn’t [So go fuck yourself!]

“First, unlike in the case of the spousal, attorney-client, and psychotherapist-patient privileges that have been recognized, the reporter-source privilege does not share the same relational privacy interests or ultimate goal. The recognized privileges promote the public’s interest in full and frank communications between persons in special relationships by protecting the confidentiality of their private communications.”

Traxler completely (willfully?) misunderstands the issue.  The party with the claim here is not really Risen as an individual (and not even Sterling). The party whose rights are being evaluated here is THE PUBLIC. The public has a compelling right to know things. If reporters cannot find things out, then the public will not find things out either. It’s that simple.

Traxler’s analogy here is not sound either. He says Risen does not deserve protection because he did not try to hide the information he obtained confidentially but, on the contrary, shouted it from the rooftops by publishing it. Well, what is a journalist supposed to do? Seek the truth and not share it with anyone?

Traxler is writing like a Martian who has never read a newspaper.

Besides, psychotherapists often write up cases and publish their findings in the professional literature but withhold the identity of the patient. That’s a much more apt analogy.

Pgs. 40-41: Speaking of Risen, Traxler writes:

“His primary goal is to protect the identity of the person or persons who communicated with him because their communications violated federal, criminal laws.”

That’s not true, either, and he is imputing a motive to Risen that does not exist – or, at least, has not been proven. As a reporter, Risen had to make a decision about confidentiality in advance of knowing whether such communication violated any federal laws – and indeed, that is a matter of fact for a trial court, not something that Traxler should assume. (Again, the judge is showing his bias in this case; he clearly agrees with the government and has pre-judged the case against Sterling.) Traxler is pro-prosecutor and does not even recognize his own bias. I wonder how many other former prosecutors there are on the federal bench? And I wonder how many ex-journalists? (probably zero)

[Note to self: I am starting to warm up to the idea of a federal Shield Law, if only to take these determinations away from the Traxlers of this world – a conservative with a lifetime appointment can do a lot of damage. I have been reluctant to see journalists go hat in hand to Congress and ask for anything. My fear is that Congress will begin by giving journalists half a loaf -- a crummy shield law loaded up with compromises -- and later take it away altogether. That would not leave journalists where they are now; it would leave them worse off. Because Congress will have established the precedent of legislating about journalism, even though the First Amendment said it about as clearly as words can say anything: Congress shall make no law abridging the freedom of the press.]

TALK ABOUT COMMON LAW – WHAT ABOUT THE 49 STATES WITH SHIELD LAWS? DOESN’T THAT REGISTER?

If a reporter’s privilege is such a terrible idea and so likely to thwart the pursuit of criminal justice, why tolerate all these state laws? What about “every man’s evidence?” (a term that is not in the Constitution either; it is a legal doctrine, like the right to know)

p. 47: Here, Traxler puts all his cards on the table: Even if there were a qualified reporter’s privilege, we would still not extend it to Risen. He would not even meet the civil standard – the so-called “Larouche test.”

Under that standard, a reporter can be compelled to testify only if three conditions are met:

1. The info is relevant to the case at hand (duh!)

2. the info cannot be gotten by any other means (all prosecutors will affirm this)

3. There is a compelling interest in the info. (all prosecutors will affirm this, too)

In this case, Traxler (a former prosecutor) happens to side with . . . the prosecutors!

p. 50:

“Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information.”

Note that Traxler refers to “the crime” in one sentence and then catches himself two sentences later and writes (properly) of “the alleged crime.” Worth remembering: Nothing has been proven. Sterling has not been found guilty by a jury of anything, and he enjoys the presumption of innocence.

Besides: maybe it wasn’t Sterling. Or maybe it wasn’t only Sterling. Traxler accepts the indictment as if all matters of fact have been proven.

p. 52:

“During these proceedings, Sterling has often represented that he intends to point his finger at these third parties as the source of the leak. The district court’s ruling, however, would require the government to compel the testimony of every other possible source, sources who could do little more than assert their own privilege or offer a simple denial of guilt, while allowing Risen, the only person who can identify the perpetrator or perpetrators, to protect his sources from the criminal consequences of their behavior.”

Huh?

Why should the journalist have less protection than those possible miscreants? Shouldn’t he have at least as much – given that the journalist is not an instigator of any criminal activity and that he is serving a compelling public interest?

This ruling is upside-down.

p. 57: Traxler takes up the argument that there is a compelling interest in Risen’s testimony. This is rich: one of the reasons he cites is the “obvious” claim that national security is important. He cites Haig v. Agee to state that “no governmental interest is more compelling” – in other words, national security is tops or at least tied for first, compared to every other governmental interest. But that’s just his opinion. It is not a natural fact or a fact that is even self-evident.

Then, he has the chutzpah to argue that the national security interest extends to the methods of gathering and keeping secrets, including “the appearance of confidentiality” – which is exactly what reporters need in order to carry out their constitutionally protected role.

p. 58: Traxler betrays a disturbing willingness to go on a fishing expedition to find out all Risen’s sources.

 

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On to the DISSENT

p. 86: Judge Roger Gregory (the first black judge on that circuit, nominated by Bill Clinton; he is also a former litigator – and therefore someone who is not automatically inclined to believe or support the government) wrote the DISSENT, for himself. He begins by celebrating press freedom and noting its central role in self-govt.

p. 90: Gregory indicates that he actually read the pro-media affidavits, whereas there is no literary evidence in Traxler’s opinion that he is conversant with that other point of view. It appears that Traxler read only the prosecutor’s briefs.

p. 91: Gregory singles out the affidavit from the Washington Post’s veteran national security investigative reporter Dana Priest — about Gitmo, Abu Gharib, secret prisons, Walter Reed.

QUESTION: Which of these revelations would any American want to put back in the bottle? They were all secret originally (maybe not Walter Reed), and they all had to be pried loose using confidential sources. Would we as a society be better off not knowing? Does Judge Traxler really prefer, himself, to learn only what the government wants him to know?

p. 98: Gregory’s bottom line:

 I, too, would recognize a qualified reporter’s privilege in the criminal context, and evaluate the privilege using the three-part test enunciated in LaRouche as an “aid” to help “balance the interests involved.” 780 F.2d at 1139. I would add a caveat to this general rule, however; in cases involving questions of national security, if the three-part LaRouche test is satisfied in favor of the reporter’s privilege, I would require consideration of two additional factors: the harm caused by the public dissemination of the information, and the newsworthiness of the information conveyed.

p. 108: Gregory implies that the CIA is not trying to cover up vital national security secrets but is simply trying to cover its ass after a botched operation.

“This information is not extraneous. Quite the opposite, it portends to inform the reader of a blundered American intelligence mission in Iran.”

Gregory says Risen’s disclosures are definitely newsworthy. The final test is to balance that newsworthiness against the harm of disclosure.

Which raises the question: where’s the harm?

Gregory:

“. . .the Government has not clearly articulated the nature, extent, and severity of the harm resulting from the leak.”

This is classic. The government failed to do this in the Pentagon Papers case, too and lost as result. In this case, it must be asked: WHERE’S THE HARM? The stuff in Risen’s book came out years ago already, and what part of the sky fell? What’s the body count? As usual, there’s nothing but some egg on some faces.

p. 112: In his big rhetorical wind-up, Gregory laments the majority ruling written by Traxler:

 I find it sad that the majority departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters. . .

Under the majority’s articulation of the reporter’s privilege. . . a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial. The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today.

Amen.

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So, that’s where things stand. By my reading, as a citizen, I would say that while this ruling was a setback, it was just another battle in a long war. Branzburg was a close call back in 1972, and, while I believe the court got it wrong, my guess is that the Branzburg ruling is not destined to stand much longer. The surge of state-level shield laws, the closeness of these cases in federal courts, and the rightness of the journalist’s privilege all give me reason to hope that neither James Risen nor any other journalist ever has to go to jail for their efforts to inform the American people about the doings of their own government. We, the people, created that government (including the judiciary), and we should be able to make it do what we want.

 “Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.”

 

 

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Filed under blogging, broadcasting, First Amendment, Journalism, journalism history, New York Times, Politics, Supreme Court, Wikileaks

Harvard prof backs Wiki-leaker

By Christopher B. Daly 

Not to be missed: Charlie Savage has a story in today’s NYTimes about the defense resting its case in the court-martial of Pfc. Bradley Manning for his alleged role in the Wikileaks disclosures. The star of the show was Yochai Benkler, a Harvard Law School professor who has been a leading figure in Harvard’s indispensable Berkman Center for Internet and Society.

On a busy news day, the Manning story was somewhat buried in the Times, but it is worth reading — including the link to Benkler’s scholarly paper on Wikileaks.

 

 

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Filed under leaks, Wikileaks

It’s raining leaks!

By Christopher B. Daly 

imgres3Today’s news brings a very curious twist on the theme of national-security leaks. This time, the suspected leaker is not a low-level functionary like Bradley Manning or Edward Snowden but a high-ranking military official — in fact, the former No. 2 in the entire military command structure. According to a report first broken by NBC News, retired Marine Gen. James E. “Hoss” Cartwright is under investigation in connection with the leak of classified information about American cyberattacks against Iran, intended to disable or slow down Iran’s program to build a nuclear weapon. (The coverage in today’s NYTimes is rather circumspect, which makes sense, considering that the Times was the recipient of the leak. The paper quotes NYT executive editor Jill Abramson saying she doesn’t discuss such things.)

I wonder if Cartwright’s rank will make any difference here. After all, he’s not some some “29-year-old hacker,” — as President Obama pooh-poohed Snowden on Thursday, while adroitly trying to keep the Snowden/NSA leak from screwing up great-power relations with China and Russia. (Funny thing: at other times, Obama is quite willing to characterize Snowden as a threat to our very existence. Also, an update: Snowden turned 30 last week.)

Back to Cartwright. Far from being a hacker, Cartwright, who was named vice chairman of the Joint Chiefs by President28stuxnet1-img-articleInline Bush and who served under Obama as well, was at the epicenter of the military/national security power structure. I wonder how the top brass and the national-security establishment feel about leaks now, when one apparently came from one of their own. Where’s the outrage? Will we be seeing Sens. McCain and Graham or former veep Cheney going on Sunday TV talk shows demanding his head?

We might also ask: Why would Hoss Cartwright do such a thing? He’s not commenting, but we can just imagine. Maybe he wanted to see the U.S. get credit for “doing something” about the Iranian threat. Maybe he wanted to let Americans know that we had the technical means to mess up their weapons program without having to attack or invade Iran by conventional means. Maybe he was ordered to make the leak by someone who out-ranked him (perhaps the Chair of the Joint Chiefs, or the National Security Adviser, or the Secretary of Defense, or the President himself?)

The Washington Post, after pointing out that the cyberattack on Iran included a computer virus named Stuxnet and was part of a broader program code-named “Olympic Games,” adds this tantalizing hint:

Cartwright, who helped launch that campaign under President Bush and pushed for its escalation under Obama. . .

Maybe Cartwright thought his favored program was threatened in some way by someone else in the national security apparatus.

As I have long maintained, the reaction to leaking is very much in the eye of the beholder. If the leaker is powerful enough, the act of leaking is not a crime but just politics by another means.

For the record: As far as we know, Cartwright would be the eighth target of an Espionage Act investigation undertaken in the Obama administration’s record-breaking campaign to punish leakers.

Speaking of cyberattacks, U.S. officials seems to be scrambling to find a path through this 28cyber1-img-popuppolicy thicket. On the one hand, Joint Chiefs Chairman Martin Dempsey is hurrying to write new rules for warfare in cyberspace, according to another article in today’s NYTimes. (Don’t hold your breath waiting to participate in this process yourself: any such rules are classified. So there!) Here’s the takeaway:

[Dempsey] said that, globally, new regulations were needed to govern actions by the world community in cyberspace. He said that the Chinese did not believe that hacking American systems violated any rules, since no rules existed.

And, finally, for an example of what’s at stake in terms of commerce, today’s Boston Globe has an eye-popping story about how the Chinese allegedly steal commercial secrets. If you thought they just stole plans for making plastic tschotschkes, think again. This one involved the design for wind turbines, which the Chinese had the nerve to sell back to us!

It’s enough to make the head spin. How am I supposed to keep up with the Whitey Bulger trial, the Hernandez case, or the trade of both Paul Pierce and Kevin Garnett to the Brooklyn Nets????

p.s. For a fun and puzzling exercise in mind-games, go to the NYT homepage and enter the term “stuxnet” in the search box. If you can figure out the results, please explain in a comment below. 

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Filed under Journalism, journalism history, leaks, media, New York Times, Obama, Politics, President Obama, Wikileaks

More on Obama’s war on journalism

By Christopher B. Daly

Below is an intelligent discussion of the Obama administration’s over-reaching to investigate “leaks” to journalists. It inolves UChicago law professor Eric Posner and Slate journalist Emily Bazelon.

Here is the original piece on Slate, which contains all the links but which I found nearly unreadable at this length on the Slate site.

As a service to my readers, I have re-formatted it below. I removed all the jumping, blinking ads, and I got rid of the reader-hostile san-serif typeface that Slate uses (in an apparent effort to appear “modern”). Instead, it is formatted in Times New Roman 16.

 

Secrets and Scoops

Emily Bazelon and Eric Posner debate press freedom, national security, and the government’s grab of the AP’s phone records.

By Emily Bazelon and Eric Posner

Posted Friday, May 17, 2013, at 1:52 PM

In the wake of the story this week that the Justice Department scooped up two months’ worth of the phone records of reporters and editors at the Associated Press, University of Chicago law professor and Slate contributor Eric Posner and Slate senior editor Emily Bazelon have been arguing over whether this is an overreach by the Department of Justice and an intrusion on the newsgathering function of the press (Emily), or an entirely justified effort to find and prosecute a scurrilous government leaker who imperiled the country’s counterterrorism operation in Yemen (Eric). Here’s an edited version of their exchange:

Emily: Like a lot of journalists, I am dismayed and indignant about the Justice Department’s commandeering of two months of AP phone records. To me, this is part of a troubling development: The Obama administration has pursued more leak prosecutions—six—more aggressively than any administration in history. For comparison’s sake, as I mentioned earlier this week, from 1917 until 1985, there was one successful federal leak prosecution. Our democracy was the better for the freedom the press has traditionally had to uncover government secrets (see Watergate). In the case of the AP, the particular tactics the government used are worrisome for their breadth—lots of phone lines in different offices over a long period of time—and for the lack of judicial oversight. Instead of serving the AP with a subpoena, which would have alerted the news organization and given it a chance to fight the order in court, DoJ apparently sent the subpoena to the phone companies. The Justice Department decided on its own not to follow its usual policy of giving the press notice of this kind of intrusion, because it apparently decided that giving notice would threaten the integrity of the investigation. It’s hard to see why that would be true of phone records collected after the fact, as New Yorker general counsel Lynn Oberlander points out—and her larger point is that this should be a call for the courts, not prosecutors, to make.

Journalists don’t really have a legal leg to stand on to protect their sources in the federal government, however—especially when any claim can be made that national security is at stake. The 1917 Espionage Act was written to fight sedition and prevent government officials from compromising military security, and has lately become a tool for going after people who leak classified information. My concern is that once a leak investigation is underway, invoking national security almost always trumps the argument that the public benefits from knowing about the internal workings of government. The Justice Department says “trust us” and “sensitive investigation” and that’s that. Why exactly should we follow along like lemmings?

But that’s not how you see it, I think. To tee you up: Did the government overreach in the AP probe? Or is this the kind of investigative tactic that gets the press and a few civil libertarians up in arms but seems perfectly sensible to everyone else?

Eric: It makes perfect sense to me—I can’t speak for everyone else, whose opinions rarely coincide with mine. The May 2012 AP story that’s at issue disclosed that the CIA thwarted a terrorist plot to plant a bomb on a plane flying to the United States from Yemen. As Orin Kerr explains, anyone who read the story could infer that U.S. or foreign agents had penetrated al-Qaida’s Yemen affiliate. Even if AP delayed publication until after completion of the operation, the information disclosed may have put the lives of agents in danger or disclosed intelligence methods or simply made foreign intelligence agencies yet again doubt the U.S. government’s ability to keep secrets. The story identifies its sources as U.S. government officials, who clearly violated federal secrecy law. The Justice Department acted rightly to investigate these violations. And because it knew that U.S. government officials communicated with AP journalists, it acted rightly to subpoena phone records that might disclose phone numbers of U.S. officials, who could then be questioned.

If the Department of Justice were investigating Wal-Mart, JP Morgan, or Google for violations of antitrust or securities law, the reaction would be a big yawn. Because it is investigating journalists, we are supposed to feel outraged. But why, exactly? I’m not a journalist myself, Emily, so maybe you can explain the unanimous expressions of outrage from the media and its supporters. I can see a worry about whistleblowers being deterred, but no one thinks that this case involves whistleblowers—by all accounts, the operation was a success and not occasion for a cover-up.

Emily: Journalists think we are special when it comes to revealing sources because protecting them gets us stories that the public benefits from knowing. Maybe the AP’s sources for this story weren’t whistleblowers. Since the government won’t tell us what triggered the subpoena, we don’t know. But yes, I do think that blanket orders for records like this one could deter whistleblowers. Consider the case of Thomas Drake, prosecuted for revealing information about waste and mismanagement at the National Security Agency that led to a prize-winningBaltimore Sun series. And consider the enormous number of classified documents and the probability that some of them are kept secret to avoid embarrassment rather than a breach of security. If you were a government employee with access to a secret like that, and you heard about Drake and the AP, wouldn’t you keep quiet? In assessing the threat to national security, it’s also important to note that the AP held back publication for a week—until the day before a government press conference about the foiled bomb plot. But, conceded, that doesn’t mean the leak itself didn’t pose a great risk. Why shouldn’t the government have to make that showing to a judge? That seems like a speed bump, not a red light. And it would address the “trust us” concern. Maybe even reassure whistleblowers, too.

Eric: You’re right to observe that government officials do not always have good incentives. I’d say they have mixed motives: (1) to protect the country and (2) to protect their hides when they fail at (1). But journalists harbor mixed motives as well. They want to disclose bad behavior among government officials, but they also want attention, Pulitzers, hits, readers—and nothing gets attention like stories about secret counterterrorism operations. The New York Times acted disgracefully by exposing the secret government program to trace money transfers among al-Qaida terrorists in a 2006 article written by Eric Lichtblau and James Risen. They did not expose government malfeasance; they exposed an intelligence operation that al-Qaida would henceforth know to evade. See Jack Goldsmith’s devastating evisceration of Lichtblau’s and his editors’ lame, self-serving rationalizations of their decisions to compromise this valuable intelligence program and others like it. I agree that courts can play a useful role in arbitrating disputes between the government and the press. But I am not convinced that they would have played a useful role here. The government had no legal obligation to seek approval from the courts, and even its harshest critics agree that if it had, a judge would have rubber-stamped the government’s request under the prevailing legal standard. So what exactly would have been accomplished? The problem is that judges are human beings like the rest of us; when confronted with national security justifications from government lawyers that they cannot directly test or verify, they have no choice but to defer to them, while the procedure would slow down the investigation. If it was a question of someone going to jail, courts would be less deferential, but the harm you describe—that potential whistleblowers in future potential cases may be deterred from talking to journalists—will have to yield to the government’s reasonable request for information so that it can conduct a criminal investigation.

Emily: OK, we each have our example of excess: For me it’s the case of Thomas Drake, for you it’s the Lichtblau and Risen series. I see runaway prosecutors and you see a runaway press. I disagree that judges need be a rubber stamp. I’m sure you’re right that they approve most subpoena requests, and maybe that’s OK, because the government’s requests pass the smell test. But two examples to the contrary that give me comfort: In 2008, in the prosecution of another accused leaker, former CIA agent Jeffrey Sterling, New York Times reporter James Risen was subpoenaed about his sources for his book on the history of the CIA during the Bush administration. In 2011, Judge Leonie Brinkema ruled that Risen did not have to testify against Sterling. “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote. There’s an example of an informed judge standing up to the government’s supposedly sacred invocation of national security. Here’s another older one of a judge standing up for the press: In 1973, Judge Charles Richey denied subpoenas that sought the identity of Deep Throat, the Washington Post’s Watergate source. “This court cannot blind itself to the possible chilling effect the enforcement of these subpoenas would have on the flow of information to the press and thus to the public,” he said in March 1973, in response to demands for documents from the Post and the NYT by Nixon’s re-election committee.

Brinkema’s decision is on appeal to the U.S. Court of Appeals for the Fourth Circuit—a year after arguments, that court has yet to hand down a ruling. Needless to say, I’m rooting for Risen. Brinkema said that going after a reporter’s sources should be a last resort, and that the government had other options in this case it hadn’t pursued. The deputy attorney generalclaims that’s not true of the AP probe. But again, why should we trust him, instead of a neutral arbitrator, to make this call?

The White House has tried to soothe the press by promising to reintroduce a federal shield law for journalists. The bill lapsed after the WikiLeaks document dump in 2010. Do you think a statute like this one is a good idea? Would it change anything?

Eric: You mentioned the Sterling case, where Judge Brinkema quashed subpoenas issued by the government to Risen, to force him to testify as to the identity of his source (allegedly Sterling) for a report about a U.S. intelligence operation against Iran. Judge Brinkema ruled against the government because she believed that the Justice Department did not need Risen’s testimony to win its case—which suggests that Risen would have been compelled to testify if the government needed his testimony. The funny thing about this opinion is if you take it literally, the qualified First Amendment privilege that prevails in Brinkema’s court would not actually protect any whistleblower, since it applies only if the government can convict the whistleblower without the reporter’s testimony. I doubt that this is in fact the case, suggesting the opinion is poorly reasoned—for why would the government try to appeal the opinion if it can convict Sterling without Risen’s testimony? So I accept your view that a judge need not be a rubber stamp. But the pertinent question is whether we can trust judges to adjudicate disputes like this competently—in such a way that balances the government’s interest in protecting leaks and the public’s right to know. On the basis of this harebrained opinion, I would say no. You also argued in your Slate piece that the Obama administration has launched a “war on journalism” because of the unprecedented number of leak prosecutions—six. According to this helpful article by Charlie Savage, only three prosecutions had ever taken place before Obama assumed office. Savage goes on to suggest that one reason for the increase in prosecutions is simply that it is easier today for the government to catch leakers by following electronic trails than in the analog past. I’d like to make two additional points. First, compared with the astonishing quantity of revelations in books like Risen’s and Lichtblau’s, the actual number of prosecutions is truly minuscule. A government official thinking about blowing the whistle should know that the risk of detection and prosecution is close to zero, even in Obama’s reign of journalistic terror. You said earlier “invoking national security almost always trumps the argument that the public benefits from knowing about the internal workings of government”—but is there anything about recent counterterrorism operations that the public doesn’t know? When these operations succeed, someone leaks classified information so he can gain credit for himself or his boss. When the operations fail, someone leaks classified information so she can place the blame on a rival.

Second, the government faces enormous constraints when it prosecutes leaks, and these constraints overshadow the puny legal considerations, like the vagueness of the Espionage Act, which you rightly note. A recent book by Gabriel Schoenfeld, which recounts the history of the press’ involvement in the disclosure of classified information, discusses many of these. Governments often refrain from prosecuting because they fear that doing so will draw attention to the disclosure of secrets, the seriousness of which enemies might otherwise overlook. Governments often face a “graymail” threat from leakers, journalists, and lawyers, who hint that additional classified information may be disclosed if a trial is held, or that it must be disclosed so that the trial is fair. Then there is the sheer difficulty of proving all the elements of a criminal case, and confronting a jury who may sympathize with whistleblowers. Finally, the government needs the press on its side, and as we have seen from the last few days, the press is perfectly willing to retaliate against the government for what it regards as unwarranted investigations and prosecutions—by, say, whipping up three unrelated penny ante scandals into a toxic brew suggesting something like Rome under Caligula.

So rather than accept the press’ description of itself as David fighting the government’s Goliath, I see something close to a battle among equals, where the press has done rather well. Has a journalist ever been held criminally liable for his or her complicity in the intentional disclosure of classified information, a plain violation of criminal law? I don’t think so. That says a lot about the true balance of power. In answer to your questions about the proposed shield law: A number of laws have been proposed that would create a reporter’s privilege. The details vary, but the major idea is to protect journalists with a balancing test so that they will not be compelled to disclose sources when the public interest in disclosure “outweighs” the public interest in concealment. So maybe under this standard a court would protect sources who disclose Watergate but not sources who disclose the identities of agents in an undercover counterterrorism operation. There is a vast amount of space between these two extremes; I have no particular confidence that courts would be able to engage in the appropriate balancing for, say, a story that reveals the identities of agents in a counterterrorism operation who might (or might not) have broken some laws. Nor does the Obama administration: The version of the law it supports requires judges to defer to the government when it claims that national security is at issue. Beyond that, I don’t see the necessity of such a law, given the arguments I’ve made about the magnitude of the political constraints on the prosecution of leakers, and on investigations of journalists. Those constraints ensure that the government will investigate leaks, and bring prosecutions, only in extreme cases. As for the Drake case, your Exhibit A for abusive prosecution of a whistleblower, it exploded in the government’s face. “If they had it to over again, I suspect the department likely would not bring the Drake case,” said a former DOJ spokesman.

Emily: Yes, the detonation of the Drake case is the only good thing about it! But that took years. I’m mulling your characterization of the press and the government as near equals. We don’t see ourselves that way, but maybe that’s because the underdog complex serves our interests. It’s also in our DNA to worry about sources drying up and to prize revelation over secret keeping. I still think, though, that the power of prosecution is the all-mighty one. The press helps to keep it in check, and so do judges. I score lots of points for you in this debate, but I’m hanging on to my faith in the importance of both.

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Filed under First Amendment, Journalism, Obama, Politics, Wikileaks

A trial about secrets, tried in secret

By Christopher B. Daly 

No getting around it: the Obama administration is badly abusing its power in its handling of the “Wikileaks” case against Army Pfc. Bradley Manning. Forget about Manning for the moment. The issues involved in his case are of great interest to the general public. We have a stake in whether he receives a fair, public trial. If his case were in a civilian court instead of a military court martial, none of the shenanigans outlined in David Carr’s column today in the New York Times would be tolerated — or, at least, they would be corrected on appeal.

The military’s handling of this case is embarrassing our country in the eyes of the world, and it insulting to the citizens of the United States. I don’t know if he is guilty or not; I don’t know if the military is railroading him or not. But I know for sure that it appears as though the military is railroading the guy, and that is bad enough.

Just a sample from today’s Carr column:

imgres3Finally, at the end of last month, in response to numerous Freedom of Information requests from news media organizations, the court agreed to release 84 of the roughly 400 documents filed in the case, suggesting it was finally unbuttoning the uniform a bit to make room for some public scrutiny.

Then again, the released documents contained redactions that are mystifying at best and at times almost comic. One of the redacted details was the name of the judge, who sat in open court for months.

A disgrace.

Update: the AEJMC, the country’s biggest group of journalism scholars and educators, just issued this statement on prosecuting leaks.

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Filed under Journalism, media, Politics, President Obama, Wikileaks

On national security leaks

By Christopher B. Daly

Here we go again.

According to today’s Times, members of Congress (especially Republicans?) are outraged at the leaks on national security matters that they believe the administration is committing. Not only that, they are shocked (shocked, I tell ya) that such leaks might be carried out to advance the president’s political fortunes. Reading between the lines, it appears that they are upset that Obama officials go off the record and whisper disclosures to the Times and other news media informing the media and thus, the public as well, of their successes in the secret drone campaign and in the secret cyberwarfare we are apparently waging against Iran.

Imagine that: Could it really be that the Obama administration has invented a tactic that no other president (such as his immediate predecessor) ever thought of? Hmmm… Ever since the passage of the Espionage Act in 1917 and especially since the rise of the National Security state after WWII, this issue has been a chronic point of friction at the intersection of law, military operations, spying, and politics.

In all these situations, I believe the first question that any honest citizen should ask is this: Where is the harm?

Who, exactly, is harmed by knowing what the government is doing in our name around the world? There is no indication that any operational details have been compromised. (Surely, the remnants of al Qaeda know that we are gunning for them; just as surely, the Iranians know that we are trying to mess up the computers that run their nuclear program. So what?)

Look at it this way: with the leaks, the American people know enough to debate whether these are good ideas or not (and whether we want to re-hire the guy who is ordering them).

Without the leaks, we would be ignorant.

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Filed under Journalism, journalism history, media, New York Times, Wikileaks

Pentagon Papers, at 40

By Chris Daly

As a public service, I am once again making public my history of the Pentagon Papers case. On the 40th anniversary of the publication of the first story about the “massive leak” of top-security government documents, it is a good time to brush up on the issues, the characters, and the law involved in this constitutional crisis. The case remains a landmark and remains as relevant as the latest headline about WikiLeaks.

The following is an excerpt from my book, which is now due out in February. Until then, here is the latest draft. If you have corrections/suggestions, please leave them in the comments.

========================================================

From COVERING AMERICA: A Narrative History of a Nation’s Journalism

(Forthcoming, UMass Press)

By Christopher B. Daly

VIETNAM (Part 3): The Pentagon Papers

By the late 1960s more and more people were asking new and troubling questions about the war in Southeast Asia. No longer was the issue, How are we doing in Vietnam? Now, the question was, What are we doing in Vietnam? Even the secretary of Defense had questions. Robert McNamara, the ultimate whiz-kid, the brightest of the best and brightest, was determined to get answers. He fell back on the tools he knew best: data, reason, and analysis. In 1967, he commissioned an internal study of U.S. involvement in Vietnam, tapping vast archives of government documents and a large team of military veterans, historians, security experts, and analysts. Among those recruited to work on the secret project–known by its nickname, the Pentagon Papers–was a former Marine with a Harvard doctorate named Daniel Ellsberg.[i]

 

Ellsberg, an expert in decision-making theory, was a civilian working at the Rand Corporation, a private think-tank that did a lot of analytical work for the U.S. government, especially the Defense Department. While he was working on the Pentagon Papers, Ellsberg underwent a profound personal conversion about he war–from enthusiastic hawk to passionate dove. Part of the reason for this change lay in the Papers themselves. In the mountains of documents (which he read in their entirety, even in areas where he was not tasked to contribute) Ellsberg came to believe that the problem was not the one he expected–that presidents lacked solid information about Vietnam. They had plenty of information. The problem was, those presidents had all chosen to lie about it. At the same time, Ellsberg was meeting leaders of the growing and increasingly vocal antiwar movement, who were posing questions that he found troubling: What right does the U.S. have to intervene in the lives of far-away peoples who pose us no threat? What is the moral justification for planning a war in which the deaths of Asian people are not even a factor?

In his new-found determination to help stop the war, Ellsberg began to think that perhaps the Pentagon Papers themselves could make the difference. If the American public only knew what was in that study, they would see what he had seen – that Vietnam was a disaster, one that president after president had led us deeper and deeper into, always while claiming that victory or “peace with honor” was just around the corner. With the idea of divulging the study’s contents, he began secretly photocopying in October 1969. It was a daunting task. With help from a friend, Ellsberg developed a system. He put as many pages as he could carry in his briefcase at Rand’s office in Santa Monica, California. At the end of the day, he would wave to the security guard and leave with the briefcase, then head to another friend’s advertising agency, where he had permission to use the Xerox machine all night. That meant that Ellsberg had to lay each page face-down on the glass plate, push a button, wait, remove the original, replace it with another, push the button again, and so on. Each night he would wrap up, catch some sleep, and return that night’s batch of documents to Rand.  “I took it for granted that what I was doing violated some law, perhaps several,” Ellsberg recalled years later. As a contributor to the study, Ellsberg had a top-security clearance, and he was authorized to have access to the set of the Pentagon Papers at Rand. Whether he had any right to make copies and distribute them remained to be seen.[1]

Aside from the legal issues, copying the Pentagon Papers was a physical challenge. The study was massive. Each set ran to forty-seven volumes, about 7,000 pages in all. Just fifteen official copies had been made, and most of those were stored in a vault at the Pentagon. The whole thing was classified “TOP SECRET-SENSITIVE” and bore warning stamps on the front and back covers and on every page. Under the protocols of the federal classification system, a document must be classified at the highest level of its most sensitive contents. Thus, if a volume of the Pentagon Papers consisted of a mix of analysis written by a historian buttressed by secret diplomatic cables or orders to units in the field, then the whole volume was treated the same as its most sensitive part. As Ellsberg well knew, the Pentagon Papers were packed with secrets–everything from the fruits of U.S. spy agencies to private exchanges between world leaders, from plots to carry out coups to estimates of other countries’ intentions.

In terms of domestic U.S. politics, the Pentagon Papers also posed a threat. Only a handful of people had read the whole study in 1969, but Ellsberg was one of them.[2] He saw document after document proving that one American president after another had lied to the American people by telling them that the U.S. role in Vietnam was minimal and successful, when in fact that role was growing and stalemated. The study also cast major doubts about the U.S. role in the Tonkin Gulf Incident of 1964, which had provided the justification for the congressional resolution authorizing a U.S. combat role in Vietnam. The Pentagon Papers provided a detailed, damning indictment of a generation of policy and policy-makers about a war that was still very much in progress. It was never meant to be read by more than a couple of dozens of people at the very summit of power. What Ellsberg was contemplating was, according to a leading expert, “probably the single largest unauthorized disclosure of classified documents in the history of the United States.”[ii]

As Ellsberg considered his options in late 1969 and early 1970, his first thought was to try releasing the Papers through a member of Congress. He hit upon Sen. J. William Fulbright, the Arkansas Democrat who chaired the Foreign Relations Committee and who was the most prominent congressional critic of U.S. involvement in Vietnam. Ellsberg also approached Senators McGovern, Gravel, and Mathias, hoping that one of them could use his congressional immunity to introduce the Papers into the Congressional Record. In the end, after taking more than a year, they all found reasons to decline. So, Ellsberg went to his fall-back position and thought about giving a set of the Papers to the press. In his mind, there was one obvious choice, one newspaper with the resources, the sense of history, the track record: The New York Times. And at the Times, there was an obvious choice: Neil Sheehan. Sheehan, who had been the Saigon bureau chief for UPI in the early 1960s, knew as much about Vietnam as anyone. He had since joined the Times, where he was a Washington correspondent, still very much involved in covering the war. One thing that impressed Ellsberg about Sheehan was a piece Sheehan had recently written for the Times’ Book Review on the subject of war crimes and the application of war crimes doctrine to U.S. actions in Vietnam. Ellsberg was struck by the passion Sheehan showed in his writing, the urgent desire to end the fighting and bombing.

So, late in the evening of March 2, 1971, during a visit to Washington, Ellsberg called Sheehan at his home. Sheehan invited him over, and they stayed up all night while Ellsberg described the mammoth McNamara study and drew Sheehan into the plan. The journalist could not promise that his newspaper would use it just as Ellsberg wished, but Sheehan himself was eager to see it and optimistic about publishing. What happened next remains a bit shrouded. Sheehan, in keeping with the reporter’s code of omerta in protecting confidential sources, never identified Ellsberg as his source and has never explained in detail how he acquired the Papers for the Times. In all his public statements, he has said simply that he “got” or “obtained” the study – which is true as far as it goes. According to Ellsberg, it was more like a dance.[iii]

Around this time, Ellsberg left California for Cambridge, to begin a fellowship at MIT, and he continued making more photocopies of the Pentagon Papers.[3] Ellsberg assumed that the FBI was watching his apartment, on a side street just off Harvard Square, so he kept his set of the Papers nearby, in a box at the apartment of his brother-in-law. While Ellsberg organized the contents of the box, his wife, Patricia, took batches to several copy shops in Harvard Square. These shops had fairly powerful, commercial copiers, but it still took a long time; all the while, Ellsberg had to wonder what might happen if a clerk at a copy shop read some of the contents and decided to drop a dime into a pay phone and call the authorities to see if they’d like their secrets back.

Ellsberg and Sheehan continued to discuss the ground rules for a handoff of the giant secret study. Oddly, perhaps, one issue they did not discuss was confidentiality. Ellsberg just assumed that Sheehan would protect his identity, but nothing was ever spelled out. Of greater concern to Ellsberg was the political goal of stopping the war. To that end, he wanted a commitment that the Times would definitely publish and that the newspaper would include in its reports some of the actual documents contained within the Pentagon Papers. As a mere reporter, Sheehan was in no position to make promises that would bind the newspaper, but he pledged to do his best. Ellsberg met him halfway, saying Sheehan could inspect the Papers[4] and take notes on them, to give Sheehan the evidence he would need to try to persuade his superiors at the Times. On that basis, Ellsberg let Sheehan into the apartment and gave him a key so he could come and go as he went about the tedious business of reading and taking notes. Sheehan asked for photocopies, but Ellsberg was not ready yet to take that step. After a few days, Sheehan headed back to Washington to begin the process of pitching the idea to his editors.

Not too long after that, it appears that, unbeknownst to Ellsberg, Sheehan returned to Cambridge, this time with his wife, the journalist Susan Sheehan. On a weekend when they knew that Ellsberg would be away, the Sheehans checked in under fake names to a hotel near Harvard Square. Using the key to the apartment that Neil had held onto, the Sheehans (according to Ellsberg) let themselves in and removed an entire set of the Papers. At some point, Sheehan used a pay phone to call the Boston bureau of the Times and asked the local correspondent, Bill Kovach, for some of the paper’s money. Kovach, in turn, called New York and got $1,500 wired to him.[iv] The Sheehans took the study to a nearby copy shop and got a complete duplicate made. Then, they returned the first set to the apartment and slipped out of town.[5]

After several weeks of examining the Papers in Washington, Sheehan was making headway in getting the newspaper’s top executives to commit. The most important figure on the news side was the managing editor, A.M. “Abe” Rosenthal, who was no dove when it came to the war in Vietnam. Rosenthal, however, determined that the project was potentially significant and took over close supervision himself. He had Sheehan’s photocopied set brought to the Times’ newsroom on West 43rd St.  in Manhattan, but soon thought better of it. He did not want the FBI storming that hallowed journalistic ground to seize files. Instead, Rosenthal ordered the establishment of a separate command post in several suites at the midtown Hilton Hotel. Everyone involved (which ultimately ran to about seventy-five reporters, editors, clerks, and design personnel) was ordered to keep mum about “Project X.”[v] They had reason to be careful.

The set held by the Times represented an unprecedented breach of the national classification system, and anyone in possession of it could face criminal charges, not only of stealing government property but perhaps espionage or, ultimately, treason. Indeed, that was the opinion reached by the Times’ long-time law firm, Lord Day & Lord. Senior partner Louis M. Loeb objected to the idea of publishing leaked military secrets in wartime, which he considered irresponsible and unpatriotic, and he warned that the government would be sure to prosecute the newspaper and its top executives. He urged the editors to return the Papers to the government.[6] Sulzberger decided to listen instead to the company’s in-house counsel, Jim Goodale, who was more sanguine about staying out of jail. With that question still unresolved, Sulzberger decided to let the project move forward but to proceed carefully. By now, he had eight years under his belt as publisher, and he felt a lot more confident than he had in his first year, when JFK had tried to bully him into transferring Halberstam out of Saigon. Still, confronting the president of the United States would be a challenge.

In one room at the hotel, Sulzberger assembled the newspaper’s lawyers to help him decide whether to publish anything at all. They argued over issues of sedition, corporate liability, and professional responsibility. In another room, he assembled a select group of the paper’s senior editors and top reporters to wade into the documents and help him determine what to publish. It was tough going in both rooms. In the roomful of journalists, the Papers were providing dozens of leads and tantalizing revelations. But the report as a whole was so vast that it would take a long time to find a story line in there. What was the upshot? What was the headline? Week after week, debates raged in both rooms. Was the Times about to break the law by giving away classified information during wartime? Would the government bring a charge of treason? If so, could the paper survive? Finally, the stories were ready.

It all came down to Punch Sulzberger. It was time to say yes or no, time to put all his chips–the paper he loved, his family’s legacy, the good of his country–on the table. His answer was yes. So, on Saturday, June 12, 1971, while President Nixon was dancing in the White House at the wedding of his daughter and enjoying what he called the happiest day of his presidency, the typesetters and pressmen at the Times began printing the stories that would bring about a first-order constitutional crisis.[7]

<>

Early on June 13, the first edition of the Sunday New York Times began to circulate. In Harvard Square, after seeing a late movie, Daniel Ellsberg went to an all-night news kiosk and bought a couple of copies. As he walked home, he smiled. In 24-point type over the four columns on the upper right of Page 1, ran this headline:

VIETNAM ARCHIVE: PENTAGON STUDY TRACES

3 DECADES OF GROWING U.S. INVOLVEMENT

The lead article, written by Neil Sheehan, said that a “massive” study commissioned by Defense Secretary Robert McNamara showed that four presidential administrations “progressively developed a sense of commitment to a non-Communist Vietnam, a readiness to fight the North to protect the South, and an ultimate frustration with this effort to a much greater extent than their public statements acknowledged at the time.” The story went on in that vein–not exactly a bombshell, more like the pebble that starts the landslide. The Times promised more stories and more documents in the following days.

The stories caught the White House off guard. In all the months of deliberations at the Times, no one had contacted the White House for comment, so the initial story came out of the blue. At first, the president decided to do nothing. In telephone calls he had on Sunday with Gen. Alexander Haig and Secretary of State William Rogers, Nixon said he had not even read the Times story, and he seemed more interested in the political impact than in the security breach, although he did call it “treasonable action on the part of the bastards that put it out.”[vi] To Nixon’s mind, the important thing seemed to be that the series criticized Democrats–Kennedy and Johnson–and not him. Then, his national security adviser, Henry Kissinger, went to work on him. Kissinger, even though he was one of the most astute and prolific leakers in history, argued that the conduct of U.S. diplomacy depended on plugging the leaks. Then he played his trump card, warning Nixon that if he tolerated this massive security breach, “it shows you’re a weakling.”[vii] That did it. If there was one thing Nixon feared, it was vulnerability. So, he began to weigh other options.

On Tuesday, June 15, 1971, government lawyers went into federal court in Manhattan and asked the court to enjoin the Times from publishing anything further about the Pentagon Papers. That was a momentous step. It was the first time since the adoption of the U.S. Constitution that the federal government had tried to impose “prior restraint” on a newspaper, based on grounds of national security. Not since the British crown ruled over the land had a publisher of a newspaper been told by the government in advance what it might or might not print. That was the essence of the constitutional crisis. Did the president have such power? If so, the Constitution did not grant it explicitly. From the newspaper’s point of view, the issue was the plain meaning of the First Amendment, with its sweeping ban on abridging the freedom of the press. From the president’s point of view, the issue was his duty as commander in chief to safeguard the nation by keeping its military, intelligence, and diplomatic secrets, particularly in time of war. Citing the Constitution, both sides prepared for a legal showdown.

At the outset, the case did not look promising for the newspaper. The matter was assigned to Judge Murray Gurfein, a veteran of Army intelligence in World War II and a Republican who had just been appointed by Nixon himself.[8] It was Gurfein’s very first case as a judge. After a brief hearing, Gurfein granted the government’s request for a temporary restraining order and set a hearing for Friday. Significantly, the Times obeyed the court order and suspended the series about the Pentagon Papers. For the time being at least, the government had in fact imposed prior restraint.[9]

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At the Washington Post, editor Ben Bradlee and his team had been hearing rumors of a big project at the Times but could not crack the secret. When the Pentagon Papers story hit on Sunday, Bradlee was beside himself. His immediate goal was to match what the Times had. He threw all his resources at it. Meanwhile, with the Times now enjoined from publishing anything further, Ellsberg became concerned that the momentum of the initial disclosures would evaporate and that the remaining documents might be successfully suppressed in court. Using a series of intermediaries and pay phones, he placed a call on Wednesday to an editor he knew at the Washington Post, Ben Bagdikian.[viii] If the Post could commit to publishing, Ellsberg said Bagdikian should fly to Boston to get a set–and bring a large suitcase. So, Bagdikian flew to Boston on Wednesday and got his own set of most of the documents.

Wednesday was also the day Ellsberg and his wife, Patricia, went on the lam–at first moving in and out of a series of motels in the Boston area. Ellsberg also worked feverishly to stash more copies of the Papers in various locations, to prevent FBI agents from gathering them, and he contacted more newspapers to offer them copies, on the theory that if more papers published the documents, the government would have a harder and harder time trying to persuade a court to attempt to put the milk back in the bottle.[ix]

With a version of the Papers in hand, the Post now swung into action, setting up a command center at Bradlee’s house in the Georgetown section of Washington. In one room, the writers got to work. In another room, the editors and lawyers got busy trying to decide whether to publish. They had twelve hours to do what the Times had done in three months. In some ways, their challenge was more difficult than the one faced by the Times. For one thing, the lawyers pointed out, the Post (unlike the Times) was contemplating publication in an environment in which a federal court had already issued a restraining order. The order did not apply to the Post, but that was something of a technicality; the lawyers could hardly maintain that they did not know how the executive and judiciary felt about publication. Post executives also had another worry that had not concerned the Times: the Post company owned several television stations, and the Nixon administration could be expected to seek revenge by using its majority in the FCC to block the renewal of those lucrative broadcasting licenses. What’s more, the Post company, strapped for cash, had just decided to join the trend toward selling stock to the general public. If the publisher, Katharine Graham, were charged with a felony for publishing the Pentagon Papers, the brokerage house underwriting the sale of the stock could back out of the deal; if convicted of a felony, she could be stripped of her television licenses. Either one might mean the end of the Post as a business enterprise.[10]

Finally, after frantic debate, the editors reached Mrs. Graham, who was hosting a dinner party at her home. On a conference call, she was told that it was now or never. She quickly gave her answer: “Go ahead, go ahead, go ahead. Let’s go. Let’s publish.”[11] Like Arthur Sulzberger, Katharine Graham was betting the house–the company, the newspaper, the family’s reputation. Like Sulzberger, she did so not only because she had good journalistic instincts but for another key reason. The fact was, she could. She owned enough of the paper to do whatever she wished. For better or worse, the publishers of the Times and the Post were answerable to no one. No less than Pulitzer, Hearst, or Luce, they were at the peak of their personal power. They were operating at a period in which their newspapers were profitable and the publishers were about as autonomous as they ever were. If they chose, they could stand up to the president himself.

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So, the copies of the Washington Post that appeared on Friday morning carried a front-page story about the massive Vietnam study, revealing that the Post had obtained the same classified materials as the Times. Government lawyers swiftly went into U.S. District Court in Washington seeking to impose prior restraint on the Post. Judge Gerhard Gesell refused to issue a restraining order, prompting the government to appeal. The appellate court reversed, and the Post was now in the same position as the Times – possessing the classified documents but muzzled from sharing them with the American public.

Meanwhile, all eyes were on the U.S. District Court in Manhattan, with Judge Gurfein presiding over a session to argue the merits of continuing the injunction against the Times. The newspaper’s  lead attorney was Alexander Bickel, a Yale Law professor.[x] He opened by noting that the Washington Post had published details from the secret report that very day and shared the story with the clients of the Post’s syndicated news service. The cat was out of the bag. There was no reason to continue enjoining the Times. Besides, Bickel continued, even after the disclosures by the two newspapers from the secret report, the sky had not fallen. “The Republic still stands,” he declared, drawing cheers from the crowd in the courtroom cheered. Gurfein banged his gavel for order and later cleared the courtroom entirely for a closed session to hear the substance of the government’s claim that the Pentagon Papers contained secrets that, if disclosed, would threaten national security. The hearing went on for hours, followed by more arguments in open court until well past 11 p.m.

The next day, Gurfein issued a ruling that shocked just about everyone. He ruled against the government. He said the Justice Department had failed to offer any “cogent reasons” for continued secrecy, and he went on to offer a stirring defense of press freedom:

The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of the freedom of expression and the right of the people to know . . .

 

In one concession to the government, however, the judge extended the restraining order against the Times until the government had a chance to appeal.

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On Friday evening, ruling in the government’s case against the Post, Judge Gerhard Gesell in Washington, had reached a similar conclusion and refused to impose prior restraint on the Post. The government promptly appealed (and secured a temporary restraining order against the Post), which meant that the two cases went to different circuits of the U.S. Court of Appeals. While lawyers argued, Ellsberg’s strategy of diversifying the outlets for publication bore fruit, and parts of the Pentagon Papers began appearing in some twenty newspapers nationwide, including the Boston Globe, the St. Louis Post-Dispatch, and the Christian Science Monitor.[12] Meanwhile, the Times and the government both appealed to the U.S. Supreme Court. The legal stakes were as high as they get. There was essentially no case law on this legal question, so the judges lacked almost all precedent. On Friday, June 25, the high court, acting with rare speed, agreed to review both cases and ordered oral arguments the very next morning.

On Saturday morning, the nine justices of the Supreme Court assembled in an open session, and lawyers for both sides were invited to make their oral arguments. As each side did so, the justices peppered them with questions. The interchanges went on for hours. At the end, Chief Justice Warren Burger thanked the lawyers, then adjourned.

On Wednesday, June 30, just fifteen days after the government had initiated the case, the justices assembled again. The chief justice read the court’s ruling. Although the justices wrote nine separate opinions, it was a clear-cut victory for press freedom. By a 6-3 margin, a majority had decided that the Times and the Post could resume publication of their series. When word reached the two newsrooms, reporters broke into cheers (which they don’t do very often), champagne flowed, and stories that had been frozen by the Nixon administration were quickly readied for publication in the next day’s papers.

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Because of the stakes involved, the high court’s ruling deserves close attention.[xi] Among the nine justices, there were three distinct schools of thought. One group of three (Justices Hugo Black, William O. Douglas, William J. Brennan Jr.) took a view sometimes known as “First Amendment absolutism.” That is, they believed that when the Constitution says “make no law . . . abridging the freedom of the press,” it means just that–the government may not restrain the press, no matter what. According to Black, “every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” In this view, press freedom exists to serve the American people, the ultimate sovereigns in a system of self-government. “The press [is] to serve the governed, not the governors,” Black wrote. If the press causes some harm, then the remedies have to come after publication and not before.

Another group of three (Chief Justice Warren Burger, along with Justices John Marshall Harlan and Harry Blackmun) sided with the government. Burger objected on procedural grounds; he thought the court was being stampeded and wanted more time. Harlan objected to the rush as well, but he went to the merits anyway. His main point was that the president has the exclusive power to handle foreign relations for the United States and therefore must have the power to maintain secrets. In his opinion, Blackmun wrote that the case required balancing different parts of the Constitution:

The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs, and places in that branch the responsibility for the Nation’s safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions.

With such a 3-3 split, the three remaining justices (Potter Stewart, Byron White, Thurgood Marshall) held the balance. In answer to the question of whether the government could ever impose prior restraint, they said, in effect, it depends. To begin with, the government faces a heavy burden of proof in such cases. More important, they went on to spell out the conditions under which prior restraint might be justified in the future: the government would have to show that publication would present an immediate, serious, and irreparable harm to the national security. The threat could not be far-off or hypothetical; it could not be a matter of politics, or mere inconvenience or embarrassment. In the case at hand, they ruled, the government had not met the standard they had just invented. On that basis, they joined with the absolutists and held that publication could resume.

Naturally, the press hailed the ruling as a great victory, which it indeed was. But newspapers, which are averse to stories about complicated legal issues and allergic to stories about themselves, quickly changed the subject and moved on. In that, they may have been hasty, because the consequences of the Pentagon Papers case were many, sometimes subtle and sometimes roundabout.

First and foremost, of course, the 6-3 ruling was a tremendous legal win for the news media, on the scale of an earthquake that reshapes the landscape for a long time to come. The verdict remains the law of the land more than three decades later and may stand for a good deal longer. In the first showdown over prior restraint, the press won and the government lost, an outcome that pretty thoroughly repudiated the whole idea of prior restraint and created a de facto moratorium on its use.[13] That much is clear. What is more difficult to measure is the psychological impact. But judging by the record, it seems fair to say that the press as an institution was emboldened by the Pentagon Papers case. The experience of taking on the president (which, in this case, also meant Defense, Justice, and State) and coming out on top was a heady one. It would be only natural for a publisher, editor, or reporter to think that maybe the press really was some kind of Fourth Estate, that the media could tackle other powerful institutions, that journalism could do more than record the things that other people say and do.

The Pentagon Papers also vindicated the early reporting out of Vietnam, by Halberstam and others, which had tried to point out that the war effort was not working. Particularly when the Papers were printed in book form (as they quickly were), the government’s own documents could be used to settle some of the debates over the war. All the reporting that had caused so much controversy and bitterness for the Saigon press corps in the 1962-65 period was fully documented. In fact, if anything, the Papers indicated that the situation had been even worse (and more duplicitous) than even the most critical reporting had indicated. If they were going to report on the government, reporters concluded, they were going to have to become a lot more cynical.

The Pentagon Papers case also had an impact on American culture and politics. In terms of the “credibility gap,” the Pentagon Papers blew it wide open. The gap now became a chasm that threatened to swallow up every powerful institution in the country. No one could read the documents, or even the stories about them, without taking away the deeper message: the officials who run the White House and the Pentagon do not level with the American people. They exaggerate, they prevaricate, they even lie – all in pursuit of their own agendas. In terms of domestic politics, the Pentagon Papers provided fresh fuel for the antiwar movement. The release of the Papers also provided evidence that the government routinely abused the power to classify information, hiding materials from the public based on convenience or politics rather than national survival, and it showed that officials rarely caught up with the need to de-classify information.

In a narrower political sense, the Pentagon Papers had the effect of ratcheting up the war between Nixon and the press. Nixon had always resented and loathed the press, and the outcome in this case left him apoplectic. One result was a desperate attempt to control information by plugging “leaks.” Nixon had found that the FBI did not share his sense of urgency about the problem, so he started to demand new ways of stopping leaks. In doing so, he was heading down a road to perdition, one that would ultimately doom his presidency at a place called Watergate.

It is also important to note what the Pentagon Papers case did not do. One thing it did not do was to affect combat operations. Not a single U.S. casualty in Vietnam was ever blamed on any of the revelations. The Papers did not contain current, operational details. If they had, it is almost certain–based on a track record stretching over decades–that the press would have voluntarily censored anything of the kind.

In terms of defining the relationship between government and the press, the court ruling left many questions unanswered. It did not define what legal protections, if any, might be enjoyed by government employees who divulge secret or classified information. Were these “leakers” to be treated like villains or heroes? Were they reformist “whistle-blowers” … or disloyal sneak-thiefs? The case also did not address the status of the journalists who collaborate with leakers. Do the journalists have any legal claim of confidentiality? Do they enjoy any of the privileges that protect clergymen or doctors from having to testify about the things people tell them in confidence? On these matters, the court was silent, leaving them to future courts and Congress to argue over.

Specifically, the high court also sidestepped the matter of the leaker Daniel Ellsberg, whose case was not before them. Instead, he was facing criminal charges, which had been brought just one day before the Supreme Court ruling.[14] Nixon was furious at Ellsberg and wanted him destroyed. “Let’s get the son-of-a-bitch in jail,” Nixon told aides on the afternoon of June 30 as he began to outline a smear campaign against Ellsberg. “Don’t worry about his trial. Just get everything out. Try him in the press. Everything . . . get it out, leak it out. We want to destroy him in the press. Press. Is that clear?” Nixon, a lawyer, had little use for the law. To him, it was all politics. And in politics, what better weapon than a leak?[15]

As it turned out, though, Nixon’s determination to play rough with Ellsberg backfired. Eventually, Ellsberg was brought to trial in a federal court in California, represented by radical attorney Leonard Boudin. Ellsberg was charged with stealing government property, conspiracy, and violating the Espionage Act. After months of proceedings, his trial was suddenly halted. Judge Matthew Byrne got word from the government’s lawyers about something he just could not stomach. Not only had the Nixon administration tapped Ellsberg’s phones. Not only had the government hired goons to break up a rally where Ellsberg was speaking. Not only did the White House dangle the offer of making Judge Byrne the head of the FBI, while he was still presiding over the trial. The real bombshell was that two men hired by the White House to plug leaks for Nixon–known by the nickname “Plumbers”–had taken the president at his word that they should find a way to disgrace Ellsberg. What these plumbers, ex-CIA man Howard Hunt and ex-FBI man G. Gordon Liddy, decided to do was to burglarize the office of Ellsberg’s psychiatrist in hopes of finding something they could use against him. When Judge Byrne heard about the burglary carried out by government agents, he had had enough. “The totality of the circumstances of this case,” he declared, “offend ‘a sense of justice’.”

Case dismissed.[16]


[1] Under the circumstances, however, it is debatable whether Ellsberg “stole” anything.

 

[2] Others included the main authors, Morton Halperin and Leslie Gelb.

[3] Since he first started photocopying in 1969, he had made several sets, for the senators he hoped would make them public. He also decided later to salt several extra sets away in the apartments of various friends, to thwart any attempt by the government to silence him. During the copying process, Ellsberg decided that it might be intimidating for a recipient of a leaked copy to see the stamp TOP SECRET on each page. So, he embarked on what he referred to sardonically as “instant declassification”–going through all 7,000 pages and using a scissor to cut out the classification stamp. From that adulterated copy he made further copies which bore (almost) no indication of their secret status. Despite his best efforts, though, even late “editions” still included a page here and there with the TOP SECRET legend.

 

[4] In fact, Ellsberg made available only forty-three of the forty-seven volumes, withholding four volumes of diplomatic history that contained many still-important secrets.

 

[5] In this way, Sheehan may have broken trust with Ellsberg, but he may also have done him a big favor. If it ever all came out in a criminal trial, Ellsberg could assert that he had not actually “given” the study to Sheehan. The reporter was, in other words, taking the whole potential liability upon himself. According to Times editor Max Frankel, “Neil was never given the material, and Ellsberg never authorized its duplication. This was not the kind of deal anticipated in Journalism 101, but it was hardly shocking to me and other reporters who had often trafficked in top secret military and diplomatic information.” (See Rudenstine, pg. 53.)

 

[6] At one meeting, Loeb was accompanied by another of his firm’s senior partners, Herbert Brownell, who had been attorney general under Eisenhower and who had drafted the Executive Order that established the federal system for classifying information. Brownell warned Sulzberger that he would probably go to jail.

 

[7] When he retired in October 1997, after thirty-four years of publishing the Times, Sulzberger was asked what had been his toughest decision. Without hesitation, he said it had been the Pentagon Papers case.

 

[8] According to the tape recordings of Nixon’s phone call to Mitchell on June 15, the attorney general and the president were feeling confident.

Mitchell: “We got a good judge on it – uh, Murray Gurfein . . . ”

Nixon: “I know him well – smart as hell.”

Mitchell: “Yeah, and – uh, he’s new, and – he’s appreciative, so . . . ”

Nixon: [laughing] “Good!”

Mitchell: “We ought to work it out.”

 

[9] Some members of the Times staff wanted to print the following day’s paper with a big chunk of white space where the Pentagon Papers story would have appeared as a mute protest against censorship, but the paper appeared as usual.

 

[10] In the end, the stock offering went ahead, along lines similar to those used by the Times in 1969. The Post offered about 1 million Class A shares, which were all owned by members of the Graham family, and about 10 million Class B shares, which could be bought by the public. Two years later, a big chunk of the Class B shares were bought by investor Warren Buffett, who became an important friend and adviser to Kay Graham. The date of the initial public offering was June 15, 1971, the day before Bagdikian got his copy of the Pentagon Papers.

 

[11] In this trial by fire, many see the forging of an important bond of trust and mutual respect between Kay Graham and Ben Bradlee that would help them through the Watergate crisis a year later. (See Katharine Graham, Personal History, pg. 450.)

 

[12] Ellsberg explained later that he picked most of the newspapers based on their degree of opposition to the war.

 

[13] The most notable exception since 1971 came in 1979, when the government attempted to stop a magazine called The Progressive from printing what the magazine called “the H-Bomb Secret.” Citing the standard for prior restraint articulated in the Pentagon Papers case, the federal judge in the Progressive case ruled that the government had met its burden of showing “grave, direct, immediate and irreparable harm to the United States” and granted a TRO. While the case was pending, however, others published details about H-bomb construction, forcing the government to drop its case against the Progressive on the grounds that it was now moot because the secrets were tumbling out in a variety of public forums.

 

[14] Ellsberg was almost immediately “outed” by a journalist who was not involved in the Pentagon Papers case: Sidney Zion, a former Times reporter who had left the paper in 1970 to found Scanlan’s Monthly magazine. Although Zion had no first-hand information, he publicly identified Ellsberg on a radio show in New York. (See Arthur Gelb, City Room, pgs. 563-4) Ellsberg fully expected that the FBI would know it was he who had leaked, so he was not particularly upset with Zion. (See Ellsberg, pgs. 393-4.)

 

[15] Nixon always seemed to make a major distinction between authorized leaks and unauthorized leaks. The former was a tool of governance; the latter was a personal affront and an abomination.

 

[16] Erwin Griswold, who, as the solicitor general of the United States in 1971, had argued the government’s side in the Pentagon Papers before the Supreme Court, may deserve the last word. Writing an op-ed essay in 1989 (in, of all places, the Washington Post), Griswold observed:

I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat . . . It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another. There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past. This is the lesson of the Pentagon Papers experience, and it may be relevant now.

 


[i] This section is based on the masterful account of the Pentagon Papers by law professor David Rudenstine, The Day the Presses Stopped. Also essential are some other secondary sources, including Halberstam, Powers that Be, 564-86; Stone, Perilous Times, 500-25; Tifft and Jones, The Trust, chap. 32; Ritchie, Reporting from Washington, 254-7. In addition, several of the principals have written memoirs of the case. The most detailed is Ellberg’s Secrets. Also valuable are the relevant portions of Graham’s Personal History, Bradlee’s A Good Life, and Max Frankel’s The Times of My Life. In addition to the court rulings in the case, the briefs (including the “secret brief” made available by the National Security Archives) also proved indispensable. For an excellent collection of documents and analysis, see the National Security Archive website devoted to the case, edited by Tom Blanton. http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/

[ii] Rudenstine, 2.

[iii] Ellsberg, chap 26.

[iv] Max Frankel, who was the Washington bureau chief at the time and, thus, Sheehan’s immediate boss, says it was $2,000. See Frankel The Times of My Life, 325.

[v] Halberstam, Powers that Be, 565-86.

[vii] Quoted in Frankel, 335.

[viii] Later a journalism professor and author of the influential book The New Media Monopoly.

 

[ix] For Ellsberg’s version, see Secrets, chap. 32.

[x] When the Times’ long-time laws firm balked, Goodale recruited Bickel and a young First Amendment expert, Floyd Abrams, to help with the case.

 

[xi] New York Times v. United States. 403 U.S. 713 (1971).

 

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Filed under Covering America, history, Journalism, journalism history, New York Times, Wikileaks

Keller on WikiLeaks

By Chris Daly

Bill Keller, the top editor of The New York Times, explained his view today of his newspaper’s role in the latest WikiLeaks release of classified government secrets.

Speaking on the Harvard campus, Keller maintained his distance from WikiLeaks founder Julian Assange and said that, so far at least, Obama administration officials have behaved like “grown-ups” – in contrast to the previous administration.

Keller spoke for about an hour Thursday afternoon at the Nieman Foundation for Journalism at Harvard. He was the keynote speaker for the foundation’s day-long conference, “From Watergate to WikiLeaks:  Secrecy and Journalism in the New Media Age.”

 

 

Here is most of what he said, including most of the Q+A:

 

Since he took over the Times in 2003, Keller said no issue has provoked a higher pitch of “indignation” than publishing secrets.

And at least until this year, nothing done by the Times has ever caused so much consternation. That includes the paper’s story about the secret NSA wiretapping program and the 2006 revelations about the Treasury Department’s international program of surveillance of financial transaction.

Both those programs, Keller noted, were designed to catch terrorists – “and, by the way, I am in favor of that.”

Both programs were secret. In both cases, government officials requested that the Times withhold publication.

How rough did they play?

Keller said Bush told him that if the Times went ahead, the editor should “be prepared to be responsible for the next terror attack on America.”
Keller took issue with Bush’s description of the same events, which appears in Bush’s recently released memoir, “Decision Points.”

When the Times went ahead and published anyway, the White House reaction was “predictably fierce.” On the Treasury story, for example, Cheney and others denounced the Times and hinted at criminal charges. Members of Congress piled on, and one right-wing radio talk host suggested that the world would be a better place without Keller.

Reactions like these, Keller said, “may be hysterical but they are heartfelt.” He said there is “real confusion” as to why a newspaper editor should be allowed to disagree with the president in matters of national security.

Then the talk turned to WikiLeaks.

[Humor alert: “When I first heard of it, I thought it sounded like a brand of adult diaper!” Keller said to polite chuckles from about 100 journalists, academics and others in a conference room at Lippmann House, the home of the Nieman program.]

This time around, Keller said the administration’s reaction was quite different from what he had gotten used to under Bush. The Obama officials they consulted in advance of publication were “sober, responsible and grown up.” There was “no orgy of press-bashing.” Except for Joe Lieberman, no one has hinted at prosecution of the newspaper.

Still, he said there are critics. The criticism falls along three main lines:

1.            The documents are of dubious value.

2.            The disclosures put lives at risk.

3.            By dealing with WikiLeaks, the Times has compromised its impartiality.

 

Addressing each, Keller went on.

1. He is puzzled by the complaint that the documents do not do more to rock our world. “The fact is, 99 percent of the news does not profoundly change our understanding.” The value of these documents is that they provide nuance, texture and drama. He said that if the stories about the diplomatic cables gets people more interested in foreign affairs, “then I believe we have performed a public service.

2.            As for the risks of collaboration with WikiLeaks, Kelle said, “They are real.” Earlier, in the disclosures of the Iraq and Afghan war documents, WikiLeak named many names. With the diplo-cables, he said Wiki did a better job. It’s beyond Keller’s power to influence Wiki. “I can only answer for the Times.”

3.            Does it complicate diplomacy? “I’m skeptical,” Keller said. He cited recent comments by Defense Secretary Gates to the effect that other countries cooperate with the U.S, “because they need us.” [Keller’s implication was that since they still need us, they will continue to talk to us, even in confidential cables.]

 

 

As for Julian Assange, founder of WikiLeaks, Keller did not seem ready to grant him the status of a full-fledged journalist and partner:

 

“We regard Julian Assange as a source. I will not say a source pure and simple, because sources are rarely pure or simple.”

“You don’t always agree with them.

“Your obligation is to verify, to supply context, and to make sense of it. That is what we attempted to do, as we would do with any documents that came into our possession.”

 

 

Currently, Keller noted, the Times has 9 staffers assigned to Iraq and Afghanistan – not including freelancers and support staff.

“There are few places you can go to find honest, on-the-scene reporting about what is happening.”

He also noted that the Times has suffered two deaths and four kidnappings. Most recently, a contract photographer, Joao Silva, lost both legs when an IED exploded while he was photographing U.S. troops on patrol in Afghanistan.

Consequently, he said, “We are invested in the struggle against murderous extremism.” He said the Times is struggling against it directly (in terms of threats to journalists’s safety) and indirectly (in terms of threats to free expression).

 

In recent years, Keller said journalists have revealed lots of things – about Abu Gharib, “black sites,” eavesdropping, extreme rendition, etc. Quoting his colleague Bob Kaiser of The Washington Post, Keller asked if anyone seriously would rather not know these things.

“Government wants it both ways: keep their secrets, but trumpet their successes.”

 

Keller also invoked the Pentagon Papers case of 1971, referring to the affidavit filed in the case by Max Frankel, then the Times’ bureau chief in Washington. Frankel observed that presidents create secrets in order to use them. Same with cabinet members, military service chiefs, even mid-level bureaucrats. Almost no one plans to keep a secret forever. They are used tactically.

“One man’s security breach is another man’s public realations campaign.”

Recently, Frankel commented on WikiLeaks for the Guardian (which was given the diplo-cables directly from WikiLeaks and shared them with the NYTimes). In that piece, Frankel said that any time 3 million people have access to a “secret,” it’s not much of a secret.

 

Keller then asked how editors reconcile the urge to inform people with the need to protect legitimate secrets.

“Sometimes it’s easy. Our reporters in Iraq and Afghanistan take care not to divulge operational intelligence.”

“In handling the WikiLeak documents, we excised names.”

 

Often, though, he said it’s not easy. “There is no neat metric. We make our best considered judgment.”

 

The Times does not always decide to publish.

“When we come down in favor of publishing, of course, everyone hears about it.”

But sometimes, the paper withholds information. Then, of course, no one knows what they don’t know.

 

Looking ahead, Keller said editors will continue to have to decide on a case-by-case basis.

“Frankly, I don’t see a way to alter journalistic practices unless we just defer to the government. Our responsibility is to publish information of interest to the public.

“We have a duty to be careful.”

“There is one thing we can do: we can be a little more judicious in our use of anonymous sources.”

 

Eliminating them is “high-minded foolishness” that would result in “press-conference stenography.” But cutting back on anonymous sources would improve credibility. Overuse adds to the suspicion that journalists make things up.

 

In legal terms, Keller said some people (he mentioned Gabriel Schoenfeld, who wrote in the WSJ.) want to use the Espionage Act of 1917 to punish the Times and other news organizations. Keller said the Espionage Act has never been applied that way.

“The main practical legal threat facing journalists these days is.. the subpoena.”

In the decades after the 1972 Branzburg case left journalists vulnerable, there were relatively few cases. Since 2000, according to the Minnesota Law Review, it has risen to hundreds a year.”

He said many journalists hope for a federal “shield law” – comparable to those that provide testimonial privilege for lawyers, ministers, and doctors. But Keller said passage does not seem imminent and, in any case, is likely to deny reporters any protection when their reporting involves national security.

 

 

Keller acknowledged that “the Internet has transformed landscape of journalism” – by bringing new levels of speed and openness.

He said this is “healthy change,” bringing new voices and new audiences.

But, he said, it has “blurred the definition of who is a journalist.”

“Personally I would urge a fairly expansive definition.” But he would not include everyone.

A real journalist (he did not use that term) is someone who spends a lot of time and energy checking things out. On those rare occasions when the Times gets sensitive secrets, the paper’s reporters spend a lot of effort verifying them – without security clearances, subpoena power, wiretaps or any other special power. He suggested that WikiLeaks is not that kind of outfit – at least not yet.

 

“The mainstream press may not enjoy the hegemony it had before the Internet.”

 

He said the current administration has been reacting calmly and professionally. “The previous administration? Not so much.”

“I’d like to turn the telescope around and ask: what are the security implications if we became MORE secretive? Would we be safer?”

 

Independent news coverage is “not just something to defend, it’s something to be celebrated.”

 

*     *      *    *    *    *    *

Q & A:

 

Q. What is the vetting process?

A. We put them into a database. We conducted keyword searches. Could be a country, a leader, a phrase. We searched. Consulted reporters who were experts. They gave us search terms.

That produced clumps of cables. Someone was assigned to go through them for stories. . .

 

The vetting had to establish, is this stuff ereal?

A number of reporters had seen the real thing before. They could confirm. No one has yet come forward (to dispute authenticity of these cables)

We went to government agencies. Let them raise any objections.  Obviously, we did not offer them the right ro decide. We heard them out  respectfully. I describe it as professional and grown-up. A lot of times, they wanted us to omit things that were just embaraassing. We said, ‘Sorry.’

 

Q.  What is the schedule for publishing the other 99 percent?

A:  There’s no schedule. The first two dumps (Iraq and afg war logs), WikiLeaks posted, after we had time. Essentially, it was an embargo. (a familiar if loathed practice)

The embassy cables were more complicated. The range was so broad, the volume so enormous. The different interests of different news organizations were large.

He said the Times held discussion with the European partners – The Guardian in the U.K. and Der Spiegel in Germany. Among them, they agreed on a calendar by which they would all write on the same topic on the same day.

“We agreed: day 1 would be ‘Pakistan day.’ Day 2 would be ‘Russia day.’ We agreed to give WikiLeaks the documents we planned to post with each day’s stories. (with redactions)

We have basically done the major stories that we plan do do.

I expect we will post future documents as we think of more stories that we want  to do.

I have no idea what WikiLeaks intends to do.

We don’t  intend to post the whole batch. Most of them are not very interesting.

Many of them are the diplomatic equivalent of  “laundry lists”

 

 

Q. Relation with Assange?

 

A: Assange never said explicitly why he cut the New York Times off. But he has said some things.

Keller said Assange has said or implied that he is miffed because the Times did not link to WikiLeaks online. He said Assange was also unhappy about two Times stories: the reporting about suspected leaker Bradley Manning and the Times’s profile of Assange himself.

 

Q. Would you work with them again?

A. “They were a source, not a partner.

“I have no idea whether WikiLeaks will offer us anything again. I would accept it on the same terms – raw material that we would take a look at and publish if its interesting.”

 

Q. This is all about government information. What about private or corporate information, like banking?

A. Keller said he is not sure that would change anything.

“One thing I omitted is that we had lawyers involved along the way – very good lawyers, the kind who see it is their responsibility to see how we can get things INTO the paper.

“We discussed possible jeopardy. Reviewed British law. We ascertained that what we were doing was legal.

“I’m not sure it would be with a private entity.

In that case, Keller said, the charge to the lawyers would be to find a way.

“Beyond that, I don’t see a qualitative difference between government information and information from other powerful institutions.

“I might feel qualms about a private individual. But in the case of a major American bank. . .  I’d be very interested in that.”

[Keller made clear that he would not be interested in just dumping bank account numbers online but he would be interested in secret memo that showed, for example, a particular bank’s role in the financial crisis and bailout.]

 

Q. Would you be troubled by a prosecution of Assange?  How is the Times different from him?

A.

I’m not a lawyer.  I think our lawyers would  kill me if I offered an answer.

Is WikiLeaks a journalistic organization? I am humble about who gets to be called a journalist.

There are two things I would say: I don’t regard Julian Assange as a kindred spirit. If he’s a journalist, he is is not the kind of journalist I am.”

 

But Keller says WikiLeaks has already evolved into something more like a journalistic organization, abandoning its original position of total transparency.

“As an editor I find the Espionage Act a scary thing in the wrong hands. It’s an abuse-able law.”

 

 

 

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Filed under Journalism, journalism history, leaks, media, New York Times, President Obama, Wikileaks

WikiLeaks prosecution?

By Chris Daly


The WikiLeaks case continues to confound U.S. authorities.

As today’s Times points out in an article by legal correspondent Charlie Savage, the application of existing U.S. law to the novel circumstances created by the Internet is no simple matter.

It appears that the Obama administration has decided not to even bother trying to pursue a Pentagon Papers-style request for an injunction to prevent journalists from publishing. Their inaction seems to indicate that the Justice Department’s lawyers have concluded that they would not win such a request, probably because these disclosures do not meet the standard defined by the Supreme Court in 1971 in deciding the Pentagon Papers case. In that ruling, the court said, in essence, that if the government ever wanted to seek to impose prior restraint on journalists, the government would bear the burden of proof to show some immediate, serious threat to national security. Without defining exactly what kind of threat, they strongly implied that it would have to be something more grave than the kind of diplomatic embarrassment that seems to be the major consequence (at least thus far) from the WikiLeaks revelations of State Department cables.

That leaves the matter of possible criminal prosecution of WikiLeaks founder Julian Assange. He is under arrest in Britain (where he was obnoxiously denied bail even though he voluntarily surrendered) and faces charges of sexual assault in Sweden. Notably, he does not face any criminal charges (at least not yet) in the United States. This part of this incident is most closely parallel to the U.S. government’s criminal prosecution of Daniel Ellsberg in 1971 on the grounds that he had violated the 1917 Espionage Act and stolen government property.

When his case went to trial in 1973, it was famously thrown out when evidence came to light of the government’s multiple bad deeds toward Ellsberg, including breaking into his psychiatrist’s office in search of damaging confidential information (which the Nixon team, naturally, planned to use to discredit Ellsberg by giving it to the press — i.e., by committing another leak). In a dramatic denouement, the judge in the Ellsberg criminal case, Judge William Matthew Byrne Jr., had the decency to throw the case out.

Anyone looking for background on the Pentagon Papers case and the Ellsberg prosecution should start with two key books:

The Day the Presses Stopped, by David Rudenstine.

Secrets, by Daniel Ellsberg.

To be continued. . .

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Filed under history, Journalism, journalism history, leaks, media, Wikileaks