NATIONAL SECURITY, LEAKS AND FREEDOM OF THE PRESS

A roundtable reconsideration of the Pentagon Papers and the legal precedents its publication yielded.

Assembling journalists, jurists, and security experts, editors Bollinger and Stone present 16 essays and a concluding report by an impromptu commission identifying points of friction and recommending next steps. At issue is the applicability of the laws surrounding Daniel Ellsberg’s delivery of the Pentagon Papers to the New York Times and Washington Post, both of which published excerpts from these classified documents. The Nixon administration moved to enjoin publication, and the Supreme Court, in “a stunning decision rejecting the government’s position and protecting the right of the freedom of the press,” ruled that prior restraint violated the First Amendment in the absence of proof that publication would compromise national security. That was tested in 1979, when Progressive magazine attempted to publish plans to build a hydrogen bomb; the court ruled that the public had no need to know how to do so, upholding the constitutional validity of the ban. Fast-forward to the WikiLeaks and Edward Snowden cases, and the court’s decision—which essentially holds that a “leaker” may be punished but the publisher not—becomes problematic. One central reason, observes former White House security adviser Avril Haines, is that “traditional media outlets” have ceded ground to myriad online publications such that “we cannot rely on the press to be a separate actor in the framework capable of making a considered judgment about what is newsworthy.” Several contributors thereby support a “new compact” that proposes both incentives and disincentives for publishers as well as broader Congressional oversight of classified information and its declassification. Others argue against such measures as bringing leaker Julian Assange to trial, for “sooner or later a prosecutor or future attorney general will determine that the precedent set…can be used to prosecute a reporter—next time, from a real news organization.”

Civil libertarians and security specialists will find this of considerable interest.