Freedom Of The Press Does Not Extend to State Secrets

• Volume 50, Presented On: June 08, 2011
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From the Panel

• For: Michael Chertoff

• WikiLeaks: Vital Sites Vulnerable to Terrorism
  CBS Evening News, December 6, 2010
  Michael Chertoff speaks with CBS Evening News about the potential risk and danger resulting from the release and posting of confidential State Department cables.
• Chertoff Says WikiLeaks’ Posts Are Not a “Catastrophe”: Video
  Bloomberg, November 20, 2010
  Former Department of Homeland Security Secretary Michael Chertoff discusses the release of classified documents by WikiLeaks.org and its potential implications for U.S. foreign policy.
• NSA Data Mining Is Legal, Necessary, Sec. Chertoff Says
  Morton M. Kondracke, Roll Call, January 19, 2006
  Roll Call interview with Homeland Security Secretary Michael Chertoff discussing the NSA’s warrantless surveillance program.
• Nominee Is Hard Charger on Legal War on Terror
  Eric Lichtblau, New York Times, January 12, 2005
  A 2005 profile of Michael Chertoff prior to his Homeland Security appointment.

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• For: Gabriel Schoenfeld

• Necessary Secrets: National Security, the Media, and the Rule of Law
  Gabriel Schoenfeld, May 2010
  Schoenfeld’s book Necessary Secrets raises the question of whether the press should ever be prosecuted for revealing information that might endanger national defense.
• Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks
  Hearing Before the Committee on the Judiciary, House of Representatives, December 16, 2010
  Schoenfeld’s testimony begins on page 50 of the PDF. This hearing also includes testimony from Geoffrey Stone, Abbe Lowell, Kenneth Wainstein, Stephen Vladeck, Thomas Blanton, and Ralph Nader.
• Can the U.S. Bring Assange to Justice?
  Gabriel Schoenfeld, Wall Street Journal, December 8, 2010
  To convict under the Espionage Act, a trial must prove bad faith on the part of the accused. With WikiLeaks, that's easy.
• Right of Privacy
  Gary Schmidt, Weekly Standard, May 31, 2010
  A review of Schoenfeld’s Necessary Secrets, which Schmidt describes as an, “insightful, historically rigorous, and pointed account of the tension between a free press and government secrecy.”
• Secrecy in Shreds
  Bill Keller, New York Times, April 3, 2011
  New York Times executive editor Bill Keller on a conversation about state secrets with Schoenfeld.
  
  

• Against: Alan Dershowitz

• Former President George W. Bush Prejudices the Legal Process Against Julian Assange
  Alan Dershowitz, Huffington Post, March 3, 2011
  When a former president of the United States weighs in on an ongoing criminal investigation, there is considerable risk that his comments could make it impossible for justice to be fair and objective.
• Assange Is a New Kind of Journalist
  Spiegel interview with Alan Dershowitz, February 22, 2011
  Alan Dershowitz, who is advising Julian Assange’s legal team, spoke with Spiegel about what the First Amendment has to say about WikiLeaks and the legal implications of social media’s role in the Arab uprisings.
• Who Needs to Know?
  Alan Dershowitz, New York Times, May 28, 2010
  Dershowitz’s review of Gabriel Schoenfeld’s book, Necessary Secrets, which he describes as “subtle” and “instructive.”
• Publish the Truth, Ask Questions Later
  Alan Dershowitz, Haaretz, April 15, 2010
  Media should be allowed to publish material from Israeli whistleblower Anat Kamm, even if it was wrongfully obtained.

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• Against: David Sanger

• Executive Session on WikiLeaks (transcript)
  Sponsored by the Joan Shorenstein Center on the Press, Politics and Public Policy, February 3, 2011
  At an executive session sponsored by the Shorenstein Center, a group of journalists, academics and media professionals gathered to discuss the impact of WikiLeaks. David Sanger (beginning on page 12 of the transcript) lays out what happened, describes the New York Times’s process and standards, and takes on criticisms of their coverage.
• WikiLeaks Ethics
  Religion & Ethics NewsWeekly, Febraruy 11, 2011
  A Religion & Ethics NewsWeekly segment on WikiLeaks, with David Sanger.
• NYT Reporter Defends Publishing WikiLeaks Cables
  Fresh Air from WHYY, Spring/Summer, 2010
  Sen. Joe Lieberman has suggested that the New York Times should be investigated for publishing classified diplomatic cables released by WikiLeaks. David Sanger responds to Lieberman's remarks and explains why the newspaper decided to publish the cables.

Related Articles

• The Constitution

• The Constitution
  Amendment I (1791)
  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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• Espionage Act

• U.S. Code, Title 18, Chapter 37
  Espionage and Censorship

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• Freedom of the Press is Not Absolute

• Is There a Right to Know?
  Andrew C. McCarthy, National Review, November 30, 2010
  To the extent that there is a public “right to know,” there must also be limitations on that right, fixed in accordance with the kind of country the public wants the United States to be.”
• More Than Assange Are to Blame for WikiLeaks Damage
  Jamil Jaffer, U.S. News & World Report, December 1, 2010
  As responsible as Assange and the team at WikiLeaks are for this harm to our national security—and they should be prosecuted to the full extent of the law—it is important to note that others also bear substantial responsibility.
• Does the First Amendment’s Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets?
  John C. Eastman, Testimony before the U.S. House Permanent Select Committee on Intelligence, May 26, 2006
  Every citizen, including—particularly including—those employed with major media organs has a responsibility to prevent ongoing operational secrets from falling into the hands of our enemies by complying with the law regarding classified information.
• The Media’s War Against the War Continues
  Andrew C. McCarthy, National Review, May, 2004
  Yet again, the New York Times was presented with a simple choice: help protect American national security or help al Qaeda. Yet again, it sided with al Qaeda.

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• Press Should Be Free to Inform the People

• When Do We Publish a Secret?
  Dean Baquet and Bill Keller, New York Times, July 1, 2006
  Joint op-ed by Dean Baquet, then editor of the Los Angeles Times and Bill Keller, executive editor of the New York Times, on the decision to disclose government secrets.
• The U.S. Can Keep a Secret
  Geoffrey R. Stone, Los Angeles Times, June 6, 2006
  Our unique method of maintaining national security while ensuring openness has worked well for more than 215 years.
• Reporting Is Not a Crime
  Jonathan H. Adler and Michael Berry, National Review, May 26, 2006
  Can journalists be prosecuted for reporting on leaked classified information? Should they?
• What Happens When Journalists Don’t Probe?
  Murrey Marder, Nieman Reports, June 22, 2003
  In war no less than in peace, the acid test for freedom of the press is the critical crossroads where secrecy and democracy collide head-on.

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• WikiLeaks

• WikiLeaks
  New York Times Coverage
  Comprehensive WikiLeaks coverage from the New York Times.
• The Times’s Dealings With Julian Assange
  Bill Keller, New York Times, January 26, 2011
  The Times’s executive editor, Bill Keller, on WikiLeaks and Julian Assange.
• Wikileaks: Frontier Journalism or Underminer of Liberty and Security?
  International & National Security Law Practice Group, May 11, 2011
  A Federalist Society panel of free speech and national security experts discusses what, if anything, can be done about the Wikileaks matter. Who, if anyone, can or should be prosecuted, and for what? How strong is a potential free speech defense? What is the potential liability of re-publishers? As technology continues to develop, who qualifies as a “journalist” and “press?” These and other questions were addressed by Floyd Abrams, Gabriel Schoenfeld, Eric Snyder and Jamil N. Jaffer.
• WikiLeaks, the First Amendment, and the Press
  Jonathan Peters, Harvard Law & Policy Review, April 18, 2011
  When can the government, consonant with the First Amendment, punish the publication of classified information related to national security?
• In WikiLeaks Fight, U.S. Journalists Take a Pass
  Nancy A. Youssef, McClatchy Newspapers, January 9, 2011
  With few notable exceptions, it’s been left to foreign journalism organizations to offer the loudest calls for the U.S. to recognize WikiLeaks’ and Assange’s right to publish under the U.S. Constitution’s First Amendment.
• WikiLeaks and the First Amendment
  Dan Kennedy, Guardian Unlimited, December 16, 2010
  An Obama administration prosecution of Julian Assange over the embassy cable leaks would be an assault on press freedom.
• How to Get Julian Assange: U.S. Should Use Aggressive Prosecution to Charge WikiLeaks Villain
  Andrew C. McCarthy, New York Daily News, December 12, 2010
  By disclosing national defense secrets allegedly purloined by a rogue soldier, Assange has damaged American combat operations, intelligence collection and diplomacy.
• You’re either With Us, or You’re With WikiLeaks
  Marc A. Thiessen, Washington Post, December 7, 2010
  If “one guy with a laptop “can shut down WikiLeaks even temporarily, imagine what the 1,100 cyber-warriors at U.S. Cyber Command could do.
• Why Prosecuting WikiLeaks’ Julian Assange Won’t Be Easy
  Baruch Weiss, Washington Post, December 5, 2010
  It will surprise many that there is no statute making it illegal to reveal classified information.
• Prosecutors Weigh Charges in Latest WikiLeaks Document Release: Is it Espionage or Journalism?
  Pete Yost, Associated Press, November 30, 2010
  The government’s decisions about whether or how to bring criminal charges against participants in the WikiLeaks disclosures are complicated by the very newness of Julian Assange’s Internet-based outfit: Is it journalism or espionage or something in between?
• To Publish Leaks or Not to Publish?
  Russell Adams and Jessica E. Vascellaro, Wall Street Journal, November 29, 2010
  An organization has obtained secret documents. They are newsworthy, but they could be damaging as well, to national interests and individuals. Do you publish?

• Cracking Down on Leakers

• Case Against WikiLeaks Part of Broader Campaign
  Carrie Johnson, Morning Edition, May 11, 2011
  The WikiLeaks case is part of a much broader campaign by the Obama administration to crack down on leakers.
• The Secret Sharer: Is Thomas Drake an Enemy of the State?
  Jane Mayer, New Yorker, May 23, 2011
  Drake, a former senior executive at the National Security Agency, faces some of the gravest charges that can be brought against an American citizen.
• Former CIA Officer Jeffrey A. Sterling Charged in Leak Probe
  Greg Miller, Washington Post, January 6, 2011
  A former CIA officer involved in spying efforts against Iran was arrested on charges of leaking classified information to a reporter.
• U.S. Analyst Charged With Leak to News Reporter
  Reuters, August 27, 2010
  Stephen Kim, who had briefed former Vice President Dick Cheney and other top U.S. officials, was indicted for violating an espionage law barring disclosure of national defense information and lying to the FBI about his contacts with the reporter.
• "Double Standard” in White House Leak Inquiries?
  Michael Isikoff, NBC News, October 18, 2010
  Obama administration cracks down on mid-level leakers, despite high-level officials dishing far more sensitive secrets to Bob Woodward.
• Former FBI Employee Sentenced for Leaking Classified Papers
  Maria Glod, Washington Post, May 25, 2010
  Shamai K. Leibowitz, a Silver Spring man who worked as a linguist for the FBI, was sentenced Monday to 20 months in prison for leaking secret documents to a blogger.
• U.S. Government Secrecy and the Current Crackdown on Leaks
  Jack Nelson, Joan Shorenstein Center on the Press, Politics and Public Policy, Fall 2002
  This discussion paper looks at the long and continuing struggle over the scope of laws to punish leakers, the mushrooming of secrets over the years, the efforts to speed up the job of declassifying millions of pages of classified material, and examines the work of a group of government and press representatives (Dialogue) who met periodically in off-the-record sessions to discuss ways to protect the most sensitive national security secrets without abridging the public’s right to know.

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• Deciding What to Publish

• Secrets About Secrets: The Backstage Conversations Between Press and Government
  Allan M. Siegal, Joan Shorenstein Center on the Press, Politics and Public Policy, Fall 2006
  This paper examines vetting arrangements described by journalists and capsule case histories of both agreement and refusal to withhold information.
• Judgment Calls
  Rachel Smolkin, American Journalism Review, October/November 2006
  How top editors decide whether to publish national security stories based on classified information.

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• Pentagon Papers

• Pentagon Papers
  The Pentagon Papers, scroll down the page for an index of chapters.
• The Pentagon Papers: A Vietnam Veterans of America Symposium
  The VVA Veteran, June/July 2002
  The symposium included keynote speaker Daniel Ellsberg, who leaded the top-secret study to the press.
• The Pentagon Papers: Secrets, Lies and Audiotapes
  Supreme Court Briefs and Opinions, The National Security Archive
  Audio clips of oral arguments and Supreme Court Documents.
• The Next Year
  Daniel Ellsberg, Harper’s Magazine, October 2006
  What needs disclosure is the full internal controversy, the secret critiques as well as the arguments and claims of advocates of war and nuclear “options”—the Pentagon Papers of the Middle East.

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• Post 9/11 Leaks

• Torture at Abu Ghraib
  Seymour M. Hersh, New Yorker, May 10, 2004
  A fifty-three-page report, obtained by The New Yorker, written by Major General Antonio M. Taguba and not meant for public release, was completed in late February. Its conclusions about the institutional failures of the Army prison system were devastating.
• CIA Holds Terror Suspects in Secret Prisons
  Dana Priest, Washington Post, November 2, 2005
  The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.
• Outsourcing Torture
  Jane Mayer, New Yorker February 14, 2005
  The secret history of America’s “extraordinary rendition” program.
• Bush Lets U.S. Spy on Callers Without Courts
  James Risen and Eric Lichtblau, New York Times, December 16, 2005
  Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
• Bank Data Is Sifted by U.S. in Secret to Block Terror
  Eric Lichtblau and James Risen, New York Times, June 23, 2006
  Under a secret Bush administration program initiated weeks after the Sept. 11 attacks, counterterrorism officials have gained access to financial records from a vast international database and examined banking transactions involving thousands of Americans and others in the United States, according to government and industry officials.

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• Related Articles

• Lies and Consequences
  Marie Brenner, Vanity Fair, April 2006
  The author captures the untold story of "Plamegate": how one of the most fundamental protections of the media has been threatened.
• State Secrets and Executive Power
  William G. Weaver and Robert M. Pallito, Political Science Quarterly 2005 Vol 120, No 1
  In view of the extensions of secrecy policy undertaken by the executive branch since 9/11, the authors evaluate the state secrets privilege.