"No one contests that in each instance, classified information was illegally provided to these media outlets and then subsequently published by them. And to my knowledge, no one seriously contends that the individuals who leaked the information are not subject to prosecution for violating the Espionage Act (or even subject to prosecution for treason if it could be proved that their intent in leaking the classified information was to undermine our war effort and thereby give aid and comfort to the enemy). Even those who would seek to bestow on the leaker the protected status of "whistle-blower" surely will acknowledge that the whistle-blower statute requires that the allegedly illegal activities be reported internally, through a certain specified administrative route, rather than shouted to the world from the front pages of our nation's major newspapers.
Otherwise, the whistle-blower statute would permit every government employee to be a classified information law unto himself, determining what should or should not be secret. The devastating consequences to our national security, and also to individual privacy, of such a flawed interpretation should be manifest. The question you are considering today is not the potential criminal liability of the leaker, of course, but of those in the institutional media who publish the classified information provided by the leaker.
That poses interesting constitutional questions if we assume, as I shall do, that classified information was leaked and subsequently published, and that the leaker himself, should his identity become known, is subject to criminal prosecution under the Espionage Act, among other things, for that illegal disclosure. Earlier this month, Bill Keller, Executive Editor of the New York Times, published an important letter to the editors of The Wall Street Journal challenging the notion "that when presidents declare that secrecy is in the national interest, reporters should take that at face value." Implicit in his rejection of that proposition is the view that reporters generally, and perhaps the editors of the New York Times in particular, are free to ignore the laws regarding publication of classified information when, in their view, the benefit to the public from gaining access to the information would outweigh any harm that might flow from its disclosure. Keller elaborated:
[P]residents are entitled to a respectful and attentive hearing, particularly when they make claims based on the safety of the country. In the case of the eavesdropping story, President Bush and other figures in his administration were given abundant opportunities to explain why they felt our information should not be published. We considered the evidence presented to us, agonized over it, delayed publication because of it. In the end, their case did not stand up to the evidence our reporters amassed, and we judged that the responsible course was to publish what we knew and let readers assess it themselves.
This is truly an extraordinary claim, that somehow the New York Times is entitled to weigh evidence and determine for itself whether to publish classified information--in other words, that the New York Times is above the law and can publish whatever classified information it sees fit, with impunity."
Section 798 of the Espionage Act makes no such exception, of course. Its text is unambiguous. "Whoever knowingly and willfully . . . publishes . . . any classified information-- . . . (2) concerning the . . . use . . . of any device . . . used . . . by the United States . . . for . . . communication intelligence purposes; or (3) concerning the communication activities of the United States . . . Shall be fined not more than $10,000 or imprisoned not more than ten years, or both." Subsection (b) of the Act defines "communication intelligence" as "all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipient." In the cloak and dagger world of intelligence gathering, this statutory prohibition is a model of clarity--it is illegal to publish classified information about our intelligence-gathering efforts and capabilities"
Professor Eastman goes on to refute the often told and incidently incorrect assertion that the Pentagon Papers case, New York Times Co. v. United States, protects them.
Good read and a harbinger of what is coming for some journalists.
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