Behind the Scenes with the Snowden Files

This essay examines how the Washington Post dealt with the tension between its duty to inform the public and its desire to protect national security when it received documents leaked by Edward Snowden. The essay describes the push-and-pull between the media and the government. Journalists try to advance the public’s right to know, particularly about potential government encroachment on civil liberties, and the government tries to defend the security of the country while respecting civil liberties. Reporters with a bias for public disclosure voluntarily withhold certain documents and details based on a careful consideration of harm, and intelligence officials with a bias toward secrecy do not fight every disclosure. The Post’s coverage of the Snowden leaks provides an opportunity to gain insights into how to navigate the inevitable conflicts between journalists’ desire to inform the public and the government’s desire to protect its secrets from foreign powers.

What We Owe Whistleblowers

The legal, political, and technological developments of the past twenty years have rendered us more reliant on whistleblowers even as the developments have made whistleblowing more difficult and more hazardous. To promote informed public debate about national security and to preserve the connection between democratic consent and government policy in this sphere, we should extend legal protection, in some circumstances, to government insiders who responsibly disclose official secrets without authorization. Affording leakers a “public value” defense against prosecution would have benefits beyond those usually cited. It would, among other things, reduce the disincentive to socially beneficial leaks, lend legitimacy to Espionage Act prosecutions, more closely align our legal regime with widely shared intuitions about moral responsibility, and restore the courts to an appropriately central role in protecting the public’s access to an essential channel of information.

Who Said What to Whom

It is important to distinguish between two kinds of transparency. The government can be transparent about its “inputs”: about who, within government, said what to whom, and when, and why. The government can also be transparent about its “outputs”: its regulations and its policies, its findings about air and water quality, or its analysis of the costs and benefits of drone strikes. The argument for output transparency is often very strong, because members of the public can receive information that can help them in their daily lives and because output transparency can improve the performance of both public and private institutions. The argument for input transparency is different and often weaker, because the benefits of disclosure can be low and the costs can be high. It is challenging to make general pronouncements about input transparency and the appropriate evaluation of leaks and leakers without making a contestable judgment about whether a particular government is well-functioning and capable of self-correction.

Information Is Power

Balancing the equally important but sometimes conflicting priorities of government transparency for public accountability versus government secrecy for national security seems intractable. One possibility is to recognize a constitutional right of access to government information. This would support democratic self-governance, allow the public to engage in meaningful oversight, and provide access to necessary information without the game of leaks. It could radically refocus arguments regarding the rights of government employees to reveal national security information and of third parties to publish it. Recognizing this right faces an uphill battle against decades of First Amendment jurisprudence. It also faces innumerable logistical and practical obstacles. It would not eliminate the need to determine when the public, the press, and government insiders can disclose national security information. Nevertheless, the ongoing collapse of press access norms and government’s increasing desire to operate outside public view may warrant dramatically rethinking First Amendment scope and protections.

The Long (Futile?) Fight for a Federal Shield Law

The Pentagon Papers case leaves open the question of whether journalists can be compelled to disclose the identities of those who reveal classified information to them. This essay considers some of the most enduring arguments for and against a federal shield law. Those who argue against such a law note definitional problems and contend that we must punish leaks given their impact on national security. They argue that institutionalizing the press actually harms the press and that the shield law is unnecessary given current use of technology to identify sources of leaks. Those in favor counter that definitional questions should not be a problem because almost all states have been able to resolve the questions in their laws. Moreover, most leaks do not compromise national security; government secrecy, deceit, and incompetence cause more damage to national security than the press’s reporting of secret information; and without a federal shield law, sources will not provide important information about government misconduct.

Reform and Renewal

Edward Snowden’s leaks regarding the “215 Program” prompted an overdue and democracy-enhancing debate, as well as ensuing reforms, which together provide a useful case study in how debate, oversight, and transparency can enhance democratic decision-making about national security programs. Rather than wait for a leak to expose a controversial program and incur the potential damage to national security, thereby undermining public confidence in the government’s activities, a more effective and meaningful answer may come from trying carefully to maximize debate and transparency before, during, and after programs such as 215 are implemented. National security and civil liberties need not be in conflict; they are, rather, intertwined. Goals should be to increase government accountability to protect civil liberties and incentivize national security agencies to expend their resources wisely.

Leaks of Classified Information

This essay assesses the motivation of leakers, the damage from leaks, and the responsibilities of journalists and the Intelligence Community. The essay argues that leaks generally have nothing to do with government wrongdoing, leakers are rarely motivated by a belief that the public needs to know about government wrongdoing, though leakers often claim to be, and the damage to the security and economy of the country from leaks is tremendous. News organizations should take seriously the potential damage from publication of classified information and should weigh the public good against that potential damage to national security. The Intelligence Community should build relationships with the media based on honesty and trust, so they will be seen as acting in good faith when they ask the media not to publish classified information for security reasons. All leakers should be prosecuted, so there can be an assessment of whether those who claim they acted for the public good actually did so.

The Pentagon Papers Framework, Fifty Years Later

In New York Times Co. v. United States,1 the Supreme Court confronted a problem that is inherent in a democratic society that values freedom of expression and, in particular, the role of the press in challenging the truthfulness of claims by the government, especially in the realm of national security. On the one hand, as Justice Potter Stewart wrote in his concurring opinion, “it is elementary” that “the maintenance of an effective national defense require[s] both confidentiality and secrecy.”...

Let’s Be Practical

The proliferation of leak cases over the last decade suggests that a case against the press for publishing government secrets may be on the horizon. Before 2009, an unwritten understanding between the government and the press of governmental forbearance and press responsibility provided more effective press protection than the First Amendment. While continued reliance on this understanding would be preferable to a changed law, the scales have tipped toward the suppression of speech in national security reporting, which has shaken that understanding. The current situation is so bad that it is now time to consider reforming the Espionage Act. Reformed legislation should provide a floor that permits First Amendment defenses, the law should act as a backstop if those arguments fail, and it should be as limited and precise as possible so that it does not inadvertently create a dangerous new power to prosecute the press.

Crafting a New Compact in the Public Interest

Leaks of highly classified information, popular views of government national security efforts, and changes in the media environment in recent years have resulted in a significant decay in the relationship between the government and the media and public trust in both institutions. To correct this harmful trend, a significant recalibration of the government-media relationship and the establishment of a new compact between them would best serve the public interest. The government should be more transparent about its national security efforts and more self-critical in classification decisions and should explain national security activities it undertakes, defending and justifying classified programs in detail whenever possible. The press must likewise be willing to afford the government fair treatment, including noting government efforts to protect national security, and to appropriately balance civil rights and privacy. It is important that these institutions work together to establish new mores on classification, government transparency, and a more responsible approach to classified disclosures.