Leaks and ConsequencesPrint
Why treating leakers as spies puts journalists at legal risk
By Lincoln Caplan
September 5, 2013
In June, soon after Edward Snowden’s leaks of classified information about the National Security Agency’s secret surveillance programs came to light, David Gregory, the moderator of NBC’s Meet the Press, asked a conspicuously hostile question. Interviewing Glenn Greenwald, the Guardian columnist who published the first story based on the leaks, Gregory said, “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?”
Greenwald reacted with icy indignation. He said, “I think it’s pretty extraordinary that anybody who would call themselves a journalist would publicly muse about whether or not other journalists should be charged with felonies.” But Gregory’s question reflected an ominous legal reality: a federal statute called the Espionage Act of 1917, in a remarkable distortion of its original intent, now threatens with criminal prosecution journalists and news outlets that publish classified information, alongside those who disclose official secrets they swore to safeguard.
When developing the Espionage Act, both houses of Congress voted against language that would have made it a crime for a news outlet to publish secret information. They likewise rejected criminalizing the provision of such information to the press. Yes, the World War I era was a dark time for freedom of speech, and the statute had undeniably jingoistic purposes: it made crimes of “insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces.” The Supreme Court found then that the government could punish speech simply because it had a “bad tendency.” Still, the parts of the statute concerning espionage were not meant to prosecute the press, but to punish the covert disclosure of secrets about national security to foreign enemies.
In the past two generations, however, reinterpretation of the statute has led the government to equate leakers with spies, and the definition is expanding still, threatening to include journalists and media that publish classified information. This could happen because central parts of the Espionage Act are nearly impossible to make sense of, leaving ample opportunity for the executive branch and the judiciary to read meaning into the law.
The obvious solution would be to revise the relevant parts of the act, and to rename it, making plain that espionage and journalism are unequivocally not the same. The revised statute should reflect how our thinking about free speech has been transformed in the past century: we now consider criticism of those in power essential to self-government. As important, it should stipulate that no individual or organization can be held criminally liable for providing information to the public that is not specifically prohibited from being disclosed. For example, the Intelligence Identities Protection Act of 1982 criminalizes the naming of a covert agent.
But don’t hold your breath. The combination of a gridlocked Congress and the sharply polarizing issue of national security makes it unlikely that we will see basic changes to the law anytime soon. The executive branch likewise has little incentive to give up any tool of law useful in deterring terrorism.
Use of the Espionage Act ought to be based on a realistic picture of how leaks work, and the truth is quite different from what many of us might suppose. Washington’s long history of trading in official secrets, it turns out, has more often been cooperative than adversarial.
The Pentagon Papers, published by The New York Times, The Washington Post, and other newspapers in 1971, recounted in irrefutable detail how, for more than two decades, the U.S. government had relied on official secrecy to hide from the American people the extent of the country’s intervention and failure in Vietnam’s civil war.
For 18 months beginning in June 1967, a Vietnam History Task Force of historians, political scientists, and others gathered materials from inside the government. Leslie Gelb, the defense official who was in charge of the project, called the effort “a history based solely on documents—checked and rechecked with ant-like diligence.” It filled 7,000 pages and 47 volumes. Gelb classified it “top secret.” By law, the work had to carry the highest security rating of the different types of classified information contained in it.
In June 1969, the task force distributed 15 sets of the completed study. Two went to the RAND Corporation, a consulting firm specializing in national security issues. Because RAND was designated “a Department of Defense repository,” the papers there were readily available to researchers with the proper security clearance. Daniel Ellsberg, a RAND consultant who had written part of the study, was one of them. He convinced himself that it was in the public interest for the papers to be published, so that people would know how secrecy had been invoked to cover up deceit. He made a photocopy of one RAND set and gave most of it to the Times.
When the newspaper began publishing the papers in June 1971, the government obtained a temporary injunction from a federal trial court in Manhattan, preventing the newspaper from publishing any more of the study on grounds that it contained information harmful to national security.
Max Frankel, the Times Washington bureau chief at the time, wrote in his memoir that President Nixon sought “the right to forbid and punish the publication of anything that the executive branch—particularly the president—chose to brand as ‘classified.’ ” Henry Kissinger, Nixon’s national security adviser, told his boss that the release of the papers threatened the power of the executive: “It shows you’re a weakling, Mr. President.” Afterward, Frankel wrote, “Nixon ordered an all-out attack on the Times.”
The trial judge was Murray Gurfein, a former Army intelligence officer. The government persuaded him to hold a secret hearing in a sealed courtroom, even though the Times had already published large parts of the Pentagon Papers and the Post was also publishing them by then. Frankel, who was in the courtroom, recounted in his memoir, “Instead of bedazzling the initially sympathetic Judge Gurfein with an index of dangerous disclosures in the papers, the government witnesses ended up offending him by refusing to cite any.” They gave no examples of damaging information in the papers.
The judge ruled for the Times but kept the temporary injunction in place while an appeal went forward. A different judge imposed a similar injunction on the Post, and after the cases were joined together, the Supreme Court quickly heard arguments in a consolidated appeal.
Five days later, the court issued a short per curiam opinion, meaning it came from the institution itself rather than a particular justice: by a vote of 6-3, it invoked the First Amendment’s protection and ruled that the government had not met the very high standard necessary to keep newspapers from publishing.
It was a significant victory over the government’s first-ever attempt to stop the press from publishing classified information. But when the Supreme Court decided the case, Justice Byron White filed a separate, concurring opinion that laid the groundwork for the disturbing history since then.
He focused on the Espionage Act, under which the Nixon administration had sought to prosecute the Times and the Post for the crime of possessing, without authorization, a document “relating to the national defense” either “willfully to communicate or cause to be communicated that document to any person not entitled to receive it” or “willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it.”
According to White’s analysis of the act, it was “clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information,” relying on “criminal sanctions and their deterrent effect on the responsible, as well as the irresponsible, press.” He went on, “I am not, of course, saying that either of these newspapers has yet committed a crime, or that either would commit a crime if it published all the material now in its possession.” But he raised the serious prospect that they might have—or might yet. In his view, the Espionage Act applied not just to disclosure of classified information to foreigners, but also to the media’s publication of the information. This radical reinterpretation of the statute’s meaning would have profound effects in the years to come.
In a classic 1973 article in the Columbia Law Review, two of the school’s young professors, Harold Edgar and Benno C. Schmidt Jr., argued that the Espionage Act was clearly intended to apply to traditional spies, not to journalists. But parts of it, particularly subsections 793(d) and 793(e), were so broadly written that “if they mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality. The source who leaks defense information to the press commits an offense; the reporter who holds onto defense material commits an offense; and the retired official who uses defense material in his memoirs commits an offense.”
The statute does not define who is and who is not “entitled to receive” defense information. For example, it could mean that only those authorized by statute to receive it are entitled, excluding many people with security clearances, along with journalists. The statute does not make clear whether it applies only to information from government sources or also to what can be learned independently, like details about troop movements gathered by watching them.
Edgar and Schmidt wrote that it was conceivable to have a system in which a government employee could be prosecuted for disclosing a defense secret to a reporter even if it were not a crime to publish the information, as a “compromise of the competing values of secrecy and executive branch loyalty, on one side, and freedom of speech on the other.” This is, in practice, how things have generally worked. “The espionage statutes do not, however, enact such a system,” the professors noted. Courts are not supposed to apply criminal statutes to conduct unless Congress clearly intended to make it illegal. Otherwise, by rewriting the statute, a court breaches the separation of powers between Congress and the judiciary.
The authors were especially critical of Justice White’s opinion in the Pentagon Papers case and the court’s “surprising willingness to speculate about matters extraneous” to the case. In doing so, they said, he created “a loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets.”
A decade later, the Reagan administration pointed this loaded gun when, according to a federal prosecutor, it decided to get “a handle on the government employees”—what Philip Weiss in Harper’s Magazine described in 1989 as “a series of measures to restrict sharply the flow of information,” so that the administration “got to tell stories its way, without fear of contradiction from government workers.” As Weiss wrote, the Reagan team found “a rare chance for the government to make an important ideological and legal point at one individual’s expense.”
That person was Samuel Loring Morison, a taciturn eccentric who was easy to snare. As an analyst for the Naval Intelligence Support Center near Washington, D.C., he had a security clearance of “Top Secret-Sensitive Compartmented Information.” He worked in a “vaulted area” where only people with similar clearances were allowed and had signed a nondisclosure agreement making him criminally liable for unauthorized disclosure of classified information.
Oddly, the Navy had given him permission to moonlight for Jane’s Fighting Ships, an annual English publication about global naval operations. In 1984, the publisher started a magazine called Jane’s Defence Weekly. The editor asked Morison to help fill in the story, then in the American press, about an accident at the Soviet naval base at Severomorsk, home to the USSR’s Northern Fleet. About one-third of the fleet’s stockpile of surface-to-air missiles had exploded in a major fire.
Morison was a Navy analyst of amphibious and hospital ships and of mine warfare, but sent Jane’s Defence Weekly several pages of information about the explosion. On the desk of another analyst in the vaulted area, he saw photographs of a Soviet aircraft carrier then under construction at a different naval yard. The photographs, stamped “Secret” and bordered on all sides with the message “Warning Notice: Intelligence Sources or Methods Involved,” had been taken by an American KH-11 reconnaissance satellite.
Morison grabbed the photos, trimmed off the borders, and mailed them to Jane’s in London, which published them shortly afterward. When one of the images appeared in The Washington Post in August 1984, the Navy launched an investigation. Morison denied knowing anything about the theft, but the ribbon from his typewriter at work tipped off investigators to his correspondence with Jane’s. They also found his fingerprint on one of the photos that had been provided to the magazine. The Navy arrested Morison, even as he continued to deny he had stolen the photos. But when investigators searched his apartment, they found two secret intelligence reports on the Severomorsk explosion in an envelope marked for Jane’s.
The weakest part of the government’s case against Morison asserted that the satellite photos of the new aircraft carrier harmed national security. The Soviets already knew about the KH-11 satellite and its capabilities: a former CIA employee had sold them the satellite manual a few years before. A retired CIA officer who had been in charge of developing the satellite testified in Morison’s defense that the risk of damage stemming from publication of the satellite photos was “zero.”
Morison’s defense portrayed him as a whistleblower who, according to his lawyer, wanted “to let people know what the other side was doing.” Until Morison mailed the photos to Jane’s, few people outside the government knew how far along the Soviets were in building their first nuclear-powered carrier—“a quantum leap in sea power,” Morison’s lawyers said. Since Morison was not engaged in espionage on behalf of a foreign power, his intentions were supposed to be irrelevant to the judgment about his guilt or innocence. But from the defense’s viewpoint, his motivation—to expand public knowledge—reinforced the value of his leak. That principle, the defense argued, was a primary reason Morison should be found not guilty.
The government also understood that Morison’s motivation was irrelevant but framed the case in terms of politics rather than principle and had no trouble portraying Morison as a profiteer: he was not paid for the photographs, but he had been for his other Jane’s work, so the government said he had provided the photos to score a job at Jane’s.
Morison was convicted in 1985 on four counts, two of theft and two of espionage—unauthorized transmittal of secret photographs to “one not entitled to receive them” and receiving and keeping unauthorized secret intelligence reports. He served eight months of a two-year term in federal prison and received a pardon from President Clinton in 2001. He was the first and only person so far convicted under the Espionage Act for disclosing documents or information to the press.
The trial judge wrote, unconvincingly: “While it is, of course, impossible to determine exactly what Congress meant when it passed the statute, it is more likely that the type of activity that defendant allegedly engaged in was meant to be covered. Congress could very easily have meant, when it used the word ‘spy,’ one who used his position and classified security clearance to obtain information to which he would not otherwise be entitled and release it to the world.”
In 1988, the U.S. Court of Appeals for the Fourth Circuit, by a vote of 3-0, affirmed the conviction and the power of the government to prosecute leaks to the press. It upheld the finding that the Espionage Act allowed for prosecution of any unauthorized person who receives secret information about the national defense, not just a classic spy. The court made concrete Justice White’s interpretation. The government did not argue this point in the case, and the court did not say so directly in its decision, but the distance seemed razor thin between the conviction for disclosing a secret to the press and a possible future conviction of a media outlet for publishing a similar secret. The Supreme Court chose not to review the case. The Morison ruling stands as “good” precedent.
Kathleen Buck, general counsel of the Defense Department during the Reagan administration, anticipated that outcome in 1985 at an American Bar Association meeting: “With respect to the leaking of classified information, in my opinion this is a serious threat to national security. The fact that such information is printed in a newspaper or handed directly to our enemies in exchange for money really makes no difference in terms of consequences.”
The main problem with Buck’s view is that it ignores a fundamental truth about how leaks work. The kind of disclosure Morison made—maddening to officials who work in national security, but not harmful—happens all the time. A particularly enlightening piece of writing on the nature of leaks came out of the Pentagon Papers case. As the Times prepared to square off against the government in the courtroom, Max Frankel realized that only he and James Greenfield, then the paper’s foreign editor, “knew how casually the government wielded its top secret stamps” and “what a lively commerce in such secrets occurred in Washington every day.”
Frankel wrote a memo for the lawyers representing the newspaper about the role of leaks in American governance and press coverage of it. The legal team submitted it as an affidavit for Judge Gurfein, attaching 75 examples of routine publication in newspapers of military and diplomatic secrets. The heart of the affidavit, titled “ ‘Secrecy’ in Washington,” explained:
The Government’s unprecedented challenge to The Times in the case of the Pentagon papers, I am convinced, cannot be understood, or decided, without an appreciation of the manner in which a small and specialized corps of reporters and a few hundred American officials regularly make use of so-called classified, secret, and top secret information and documentation. It is a cooperative, competitive, antagonistic and arcane relationship. I have learned, over the years, that it mystifies even experienced government professionals in many fields, including those with Government experience, and including the most astute politicians and attorneys.
Without the use of “secrets” that I shall attempt to explain in this affidavit, there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington and there could be no mature system of communication between the Government and the people. That is one reason why the sudden complaint by one party to these regular dealings strikes us as monstrous and hypocritical—unless it is essentially perfunctory, for the purpose of retaining some discipline over the Federal bureaucracy.
I know how strange all this must sound. We have been taught, particularly in the past generation of spy scares and Cold War, to think of secrets as secrets—varying in their “sensitivity” but uniformly essential to the private conduct of diplomatic and military affairs and somehow detrimental to the national interest if prematurely disclosed. By the standards of official Washington—Government and press alike—this is an antiquated, quaint and romantic view. For practically everything that our Government does, plans, thinks, hears and contemplates in the realms of foreign policy is stamped and treated as secret—and then unraveled by that same Government, by the Congress and by the press in one continuing round of professional and social contacts and cooperative and competitive exchanges of information.
Frankel explained that the government was the press’s “regular partner in the informal but customary traffic in secret information, without even the pretense of legal or formal declassification.” Officials and those who left government regularly engaged in “a kind of ad hoc, de facto declassification” to “promote a political, personal, bureaucratic or even commercial interest.” They traded with the Congress and the press, with foreign governments and with other American officials. The government and its officials routinely misused the classification of information, by imposing secrecy where it was not justified or by retaining it long after release was warranted.
Frankel emphasized that there was a “need for some secrecy in foreign and military affairs” to protect the nation from enemies and serve allies. He wrote, “Virtually every mature reporter respects that necessity and protects secrets and confidences that plainly serve it.” The Times showed its respect by spending almost three months reviewing the Pentagon Papers before it published them, assuring itself that they would cause no immediate harm if it did.
In a forthcoming issue of Harvard Law Review, Columbia Law School’s David Pozen updates and fills out Frankel’s view in “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information.” In “a polity saturated with, vexed by, and dependent on leaks,” Pozen writes, the government has long chosen not to vigorously enforce the laws against leaking. Its public emphasis is on “vilifying leakers,” but in private, the government’s practice is largely to maintain “a permissive culture” of disclosures.
In the current leak-obsessed climate, journalism has rightly focused on the Obama administration’s keen pursuit of leakers. When the administration arrived in 2009, the Times’s Sharon LaFraniere reported, it learned that over the previous four years, the Justice Department had been alerted to about 153 leaks. Yet none had led to an indictment. The Obama team stepped up the hunt for leakers, even putting aside longtime Justice Department guidelines that restrict prosecutors from inspecting the telephone records of journalists.
The administration has prosecuted seven leakers so far, not including Edward Snowden, who has been charged with espionage and other crimes but has not been indicted while he remains beyond the reach of American law. That compares with six in all previous administrations combined. Yet, against the tens of thousands of leaks likely made just in the last generation, 13 add up to a tiny fraction.
What Frankel called the “cooperative, competitive, antagonistic and arcane relationship” between leakers and the press continues. Snowden was part of it: he provided The Washington Post with 41 PowerPoint slides about a classified surveillance program; the paper then “sought the views of government officials about the potential harm to national security prior to publication and decided to reproduce only four of the 41 slides,” the Post reported.
During his negotiations with the Post over how much of what he planned to leak the paper would publish, the Post reported, Snowden “said he did not intend to
release a pile of unedited documents upon the world. ‘I don’t desire to enable the Bradley Manning argument that these were released recklessly and unreviewed,’ he said.”
That was the argument made against U.S. Army Private Bradley Manning in 2010, when he provided about 700,000 documents to WikiLeaks, the most extensive leak of classified information in American history, including diplomatic cables, videos of airstrikes in which civilians were killed, and incident reports from the Iraq and Afghanistan wars.
Manning’s court-martial this summer ended with his conviction on six counts under the Espionage Act and of other charges, carrying a sentence of 35 years in prison and a dishonorable discharge. It was striking, then, that the headline on the Times front page was not about the government’s victory but the defeat of its most extreme charge: “Manning Is Acquitted of Aiding the Enemy.”
Article 104 of the Uniform Code of Military Justice, about “aiding the enemy,” applies to anyone who “knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly.” The government argued that Manning provided intelligence indirectly, through WikiLeaks—and that, as an Army prosecutor said in a hearing during the case, the government would have brought the same charge against him if he had leaked directly to the Times. Manning was acquitted for lack of evidence to support the charge.
But to the distress of journalists who cover the government, the judge ruled that the charge itself was fair game—that when Manning released a mass of unsorted secret documents to WikiLeaks and it provided them to the Times and other news outlets, he gave them to enemies like al-Qaeda, committing an offense punishable by the death penalty.
The charge of aiding and abetting, which David Gregory raised on Meet the Press, was a potent symbol of the Espionage Act’s loaded gun, cocked and aimed in the Morison case. In another current leak prosecution under the act, against former CIA agent Jeffrey Sterling, who is accused of sharing classified information with Times reporter James Risen, the government has argued that leaks to the press are “more pernicious” than espionage on behalf of a single foreign enemy because every enemy benefits from them.
Jane E. Kirtley, a professor of media ethics and law at the University of Minnesota and a former head of the Reporters Committee for Freedom of the Press in Washington, D.C., sees the aggressiveness of the Obama administration as part of a long, persistent effort by the executive branch to make it possible to prosecute the press for receiving or publishing leaks. This, despite Edgar and Schmidt’s finding that the history of the Espionage Act had historically excluded prosecution for “well-meaning publication” of classified information, no matter its effect on national security.
Charitably, Justice White’s view of the Espionage Act can be understood as a reminder that the press is not an impartial judge and that while the First Amendment’s protection of its freedom affords extraordinary latitude, the press must be subject to legal restraints, even when it comes to exposing breakdowns in the workings of democracy. Such a view is even more compelling in the age of WikiLeaks, when it is no longer necessary for a leaker to rely on old media to publish revelations about secret programs. One person can make a massive instant disclosure of official secrets with the push of a button, potentially doing serious damage to American intelligence and national security.
But what happens when the underlying law used to punish these kinds of disclosures has been twisted into something it was not meant to be and should not be? When each of the primary institutions of democracy, which should help fix it, cannot be counted on to do what’s right? The rule of law then seems like a rule of power, and the government seems more concerned about maintaining control than doing justice.
Edward Snowden may turn out to be a spy, but more likely the leaks he made were at once “well-meaning” and illegal. If so, the government’s prosecution of him would be far more legitimate if it came under a law other than the Espionage Act and did not leave open the possibility that the Guardian’s and the Post’s publication of his leaks could be equated with spying.
In addition to a woeful Congress, the country now has an overempowered executive branch seemingly convinced it must use every tool at its disposal to thwart terrorism. Its unbending position has been that the Espionage Act covers a broad range of conduct by officials and others, and does not require the government to prove that a leaker intended to harm the nation or that publication of a leak caused any harm.
Political life in post-9/11 America has been marked by public acquiescence to executive supremacy and capitulation to secrecy. Since the Snowden leak, our democracy feels more vital thanks to all the people, including many in Congress, who have raised probing questions about the NSA’s sweeping collection of communications data.
As Justice Hugo Black wrote in a concurring opinion in the Pentagon Papers case, the First Amendment gave robust protection to the press so that “it could bare the secrets of government and inform the people.” Without the Snowden leaks and the press’s willingness to publish them, Americans would still be in the dark about the extent of the NSA’s domestic surveillance programs. Secrecy is often necessary to protect national security, but it can just as easily be used as a convenient veil for the autocratic assertion of power and, as the courts may find about parts of the surveillance programs, for illegality. Do we really trust the government to know when that veil of secrecy should be lifted?
Lincoln Caplan is a visiting lecturer in law at Yale Law School and a member of the editorial board of the Scholar. He is also a senior advisor to Encore.org.