By Douglas McCollam
In late May of 1942 Stanley Johnston, a war correspondent for the Chicago Tribune, was on a transport ship bound for San Diego along with other survivors of the U.S.S. Lexington, an American aircraft carrier sunk by the Japanese earlier that month during the battle of the Coral Sea. Johnston, a personable Australian and a decorated World War I veteran, was among the last men off the stricken carrier and was cited for displaying “conspicuous bravery” in his attempts to aid sailors injured during the battle. His front-page series about the harrowing engagement would rivet Tribune readers.
While on the trip back stateside, Johnston shared a cabin with the Lexington’s executive officer, Mort Seligman, with whom he had forged a friendship. At some point during the trip Johnston was either given or stole (accounts vary) a secret dispatch about a Japanese armada being assembled to attack American naval forces near the tiny island of Midway in the northern Pacific. Johnston copied down some of the information, which had been gleaned from decoded intercepts of Japanese communications. Just over a week later, after the U.S. Navy won a decisive triumph at Midway — America’s first major victory in the war and a turning point in the battle for the Pacific — Johnston’s editor at the Trib, with whom he had shared the information, realized the paper was sitting on a tremendous scoop.
An unbylined story, navy had word of jap plan to strike at sea, ran on the Tribune’s front page on June 7, the day after the battle at Midway ended. Though it said nothing about U.S. code-breaking activities, the story cited sources in “naval intelligence” and contained a detailed breakdown of the Japanese force and its movements.
In Washington, the Roosevelt administration reacted with fury. As recounted in Michael Sweeney’s book, Secrets of Victory: The Office of Censorship and the American Press and Radio in World War II, President Roosevelt’s initial impulse was to send marines to occupy the Tribune building and to bring up the paper’s flamboyant publisher (and longtime Roosevelt nemesis), Colonel Robert McCormick, on charges of treason. Roosevelt also considered banning reporters from future military operations or replacing them with government information officers. Though those plans were never carried out, the administration did publicly pursue charges that the paper had violated the Espionage Act of 1917, going so far as to appoint an outside prosecutor and impanel a grand jury to consider an indictment. Ultimately the case was dropped.
The story of the Tribune’s wartime brush with the Espionage Act has resurfaced recently, with some commentators citing it as evidence that the act can, and in some cases should, be used to prosecute reporters who publish stories based on classified information that officials view as damaging to national security. Writing in the Los Angeles Times, Max Boot, former editorial features editor for The Wall Street Journal, said that these days McCormick would be “hailed as a First Amendment hero” by media types for publishing the Midway story. Expanding the attack, Gabriel Schoenfeld, senior editor of Commentary magazine, noted in the magazine’s March issue that Congress amended the Espionage Act in 1950, specifically making it a crime to publish classified information about American or other governments’ “communication intelligence activities” to the detriment of “the safety or interest of the United States.” Then, in May, Attorney General Alberto Gonzales turned the heat a notch higher, suggesting to ABC News that the Bush administration would consider prosecuting journalists for stories injurious to national security. “It depends on the circumstances,” Gonzales told the Sunday morning host George Stephanopoulos. “There are some statutes on the books which, if you read the language carefully, would seem to indicate that that is a possibility.” Gonzales later tried to qualify his remarks, but the message was clear: We know where you live.
NIXON: Boy, if I were the publisher of a great newspaper, I wouldn’t print this stuff — top-secret information.
HALDEMAN: But, uh, if — what’s the use of the classification system — why the hell do we classify anything — if a newspaper feels no compunction about printing it?
— President Richard Nixon and H.R. Haldeman
discussing publication of the Pentagon Papers
in the Oval Office, June 14, 1971
Most of the recent saber-rattling about press prosecutions has clearly been in the direction of West Forty-third Street in Manhattan, where The New York Times lives. Last December’s revelation in the Times that the National Security Agency was tracking terrorism suspects by secretly listening in on domestic phone calls without benefit of search warrants touched off a fierce debate about press freedom and responsibility that is still reverberating in legal and political circles. President Bush called the decision to print details of the program “a shameful act.” Others saw the Times’s decision to publish as a heroic moment for journalism, and redemptive of the paper’s earlier tarnished coverage of WMD in Iraq. In May the story’s authors, James Risen and Eric Lichtblau, were awarded a Pulitzer Prize, as was Dana Priest of The Washington Post for her piece about secret CIA prisons, also based on classified information. Those and other stories have fueled calls for tighter controls on the press and more aggressive punishment of reporters who publish stories based on leaks of classified information, on the ground that the stories damage national security. In late May, at a rare open hearing of the House Permanent Select Committee on Intelligence, chairman Peter Hoekstra said members of the intelligence community had testified that press leaks had ruined billions of dollars in defense programs and done more damage to national security than any foreign espionage. Some journalists, Hoekstra added, “apparently believe they should have the right to determine which national security information is or is not fit to classify.”
Fair charge? Even the most ardent defenders of the Fourth Estate might concede it contains some truth, but it also misstates the issue: journalists don’t decide what information is fit to classify; they just decide what to do with information that someone else has classified, and that they have obtained from a leaker, usually somebody with clearance who has determined the information isn’t fit to keep secret — and sometimes with good reason. Rare is the reporter who has worked in Washington long enough to see the cherry trees blossom who hasn’t encountered a government CLASSIFIED stamp on a document that could easily be picked up at the library, courthouse, or newsstand. This phenomenon is reflected in statistics showing that the number of classification decisions on documents went from 8.7 million in 2001 to 14.2 million in 2005, a jump of about 60 percent in three years. The danger in this is clear. As Justice Potter Stewart observed in the Pentagon Papers case, “if everything is classified, then nothing is, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”
The recent tussles between the government and journalists over the publication of classified information point to a basic tension at the heart of our constitutional system. On the one hand, the law vests the government with the right to classify information and to punish those who reveal it. On the other, the press receives a steady stream of classified information from government officials in the form of sanctioned and not-so-sanctioned leaks and publishes some of them in the belief that it is information the public should be aware of. This contradictory behavior pits two constitutional principles against one another and has resulted, through most of our history, in a kind of standoff in a zone of “intentional ambiguity,” to use the phrase of Jonathan Turley, a professor at George Washington University Law School. That zone of ambiguity — which has also variously been dubbed an “informed understanding, an untidy compromise,” or a “benign indeterminacy” — has allowed journalists to operate on the premise that so long as they didn’t do anything illegal to actively obtain classified information, they need not fear prosecution for receiving it or publishing it in a reasonably responsible manner consistent with their role under the First Amendment.
Increasingly, though, that zone of ambiguity long enjoyed by journalists is being squeezed, and not only in the area of national security.
Historically, attacks on press activities can be said to come under one of three broad headings: attempts to block publication (prior restraint); attempts to invade newsgathering (reporters as witnesses); and attempts to punish postpublication (reporters as defendants in libel or criminal prosecutions). In the case of prior restraint, most of the ambiguity was resolved in favor of the press in 1971 in The New York Times Co. v. United States, the Pentagon Papers case. There the Supreme Court set a very high bar for the government to block publication, even when the stories contained classified information pertaining to national security in a time of war. The decision was certainly a triumph for the press, but even in victory, the zone of ambiguity receded. Writing about the case a short time after the decision, Alexander Bickel, a Yale law professor who argued the case for the Times, sounded a cautionary, rather than jubilant, note: “Those freedoms which are neither challenged nor defined are the most secure. In this sense, for example, it is true the American press was freer before it won its battle with the government over the Pentagon Papers in 1971 than after its victory . . . . The conflict and contention by which we extend freedom seem to mark, or at least to threaten, a contradiction; and in truth they do for they endanger an assumed freedom, which appeared limitless because its limits were untried. Appearance and reality are near one. We extend the legal reality of freedom at some cost in its limitless appearance. And the cost is real.”
“It may be better that the issues be left unsettled than settled rightly . . . but that delicate approach mandates reliance upon the presence of ambiguities, both constitutional and statutory, that do not survive many trips to the courthouse,”
— Professors Harold Edgar and Benno Schmidt, Jr., writing on the balance of press freedoms
and national security in May 1973
The idea that an unresolved ambiguity can work in favor of journalism was certainly true in the area of protecting confidential sources. For more than thirty years after the Supreme Court’s 1972 decision in Branzburg v. Hayes, there seemed a tacit understanding between the government and journalists that prosecutors would not use reporters to go after press informants. Sure, the opinion held that reporters had no right to refuse a grand jury subpoena to testify about their sources, but it was a five-to-four decision with an ambiguous concurrence by Justice Lewis Powell that seemed to leave the door open for future developments on the question. Out of that modest pile of straw First Amendment advocates spun gold, getting reporter shield laws or favorable court rulings in forty-nine of the fifty states, and convincing a surprising number of federal courts that the federal common law supported the notion of a reporter’s privilege despite the holding of Branzburg. That levitation act, of course, came crashing down last year in the Valerie Plame leak investigation, where the court held reporters Judith Miller and Matthew Cooper in contempt for refusing to reveal their sources and demonstrated a willingness to send journalists to jail if they refused to testify when subpoenaed by a grand jury.
From the wreckage of the Plame decision press lawyers looked to salvage something usable. An opinion in the case by the federal appellate judge David Tatel outlined a standard under which a reporter’s right to refuse to testify about sources might be honored by the courts: “Specifically, the court must weigh the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value.”
This “public interest” balancing test is now at the heart of the new reporter’s shield law introduced in the Senate in May (though officially it’s called the “Free Flow of Information Act.” No one, not even the most dedicated press advocates, wants to hitch a bill’s prospects to the popularity of journalists among members of Congress). The bill is a replacement for a much more ambitious shield law introduced last year that would have granted reporters an almost absolute privilege against testifying in court. That bill quietly died after failing to gain political traction even among liberal Democrats, principally because of national security concerns. The new version, which is sponsored by Republicans Richard Lugar, Arlen Specter, and Lindsey Graham, as well as Democrats Chris Dodd and Charles Schumer, takes a much narrower approach.
For example, in the current version of the bill, run-of-the-mill, nonconfidential interviews, notes, story drafts, e-mails, and video outtakes are not protected. Even for confidential sources, the public interest in the information provided (as determined by a judge) is critical to the protection the source will receive. If, for example, someone subpoenas a reporter to testify about sources for a story on Paris Hilton’s latest cat fight or whether George Clooney got Botoxed, forget about the shield law.
On the other hand, the bill does set up a number of obstacles for prosecutors or private lawyers who want reporters’ records or testimony about confidential sources on stories involving legitimate public issues. Those barriers are somewhat lower in the national security context, but even in cases of illegal leaks of sensitive information, prosecutors trying to overcome a pledge of anonymity must convince a judge that the harm caused by the leak clearly and convincingly outweighs the value of the public’s receiving the information.
Though the bill is supported by most major news organizations and associations, even backers acknowledge that it is a long way from what press advocates wanted. George Freeman, associate general counsel for The New York Times Company, admits that it’s “not our dream bill,” and that he hoped for something stronger. “But you know politics is the art of compromise, and I think it at least will give us some degree of clarity.”
But at what price is that “clarity” obtained? A big part of the stand Judy Miller and her backers took last year was based on the idea that reporters shouldn’t distinguish between good leaks and bad leaks when protecting sources. Yet that kind of distinction is very much at the heart of the shield bill. By any measure the bill is a far cry from the kind of comprehensive privilege enjoyed by doctors and lawyers (you’d never hear a federal judge say that, as a general proposition, the public’s interest is better served by forcing a lawyer or doctor to testify against his or her client or patient). The bill also places a lot of discretion in the hands of federal judges, who are asked to make decisions based on their conclusions about the social utility of the information being sought from the reporter, rather than upon any grander notions of constitutional freedoms.
It’s unlikely, for example, that if the shield bill as introduced had been law it would have done much to help in the case of Miller and Matt Cooper. The opinions in their cases showed that the judges thought the value of leaking Plame’s CIA identity was greatly outweighed by the harm it caused. On the other hand it could have helped in the case of Wen Ho Lee, the former scientist at the Los Alamos nuclear weapons lab who pried $750,000 out of five media companies in early June in connection with a suit against the federal government for violating his privacy by giving reporters personal information about him during its investigation of whether Lee spied for China. In paying the settlement, the news organizations said their decision was based on a desire to protect their reporters who were under contempt citations for refusing to name confidential sources. As the case was of undeniable public interest, under the shield law the news organizations would have had a fighting chance to convince a judge that the harm caused by the leak was outweighed by the social utility of the information.
But after reviewing the shield bill, Mark Grannis, a Washington lawyer who represents the scientist Steven Hatfill in a similar privacy action against the government involving the investigation into the anthrax letter attacks of 2001, said his client could convince a judge to balance that test in his favor. In general, Grannis thinks the bill strikes the right tone by focusing on the public interest. “Reporters are not in trouble for noble leaks,” says Grannis. “This bill says the content of the leak matters.” Grannis, who has subpoenaed nine reporters to testify in the Hatfill case, sees something else in the bill as well: clarity. “This goes a long way toward making clear the extent of the reporters’ legal rights,” Grannis says. Kevin Goldberg, who represents the American Society of Newspaper Editors, also sees new guidelines in the bill. “People were looking for clarity,” he says. “At the very least reporters can now know going in what they can promise and what they can’t guarantee.” But would that really be a step forward? Goldberg admits it’s not ideal. “The First Amendment is all that reporters should need. With a statutory solution you can always see it chipped away.”
“If you go back in history to find and then analyze cases where leaks caused true danger to our national security, rather than merely embarrassment or political squirming for those in power, it is hard to find many . . . the frenzied efforts to prevent leaks has been far, far more damaging to the country than the leaks themselves.”
— Congressional testimony of Walter Isaacson,
author and president and ceo of
the Aspen Institute, May 26, 2006
Even if the shield bill manages to pass Congress and get signed into law (probably a long shot at this moment) it deals only with a reporter’s ability to protect sources. If charged with a crime — violating the Espionage Act, for example — the reporter will have to look elsewhere for protection. Such a scenario is possible, but not likely. Despite the position of the attorney general, the legislative history behind the Espionage Act makes clear it was not intended to prosecute journalists. Several such provisions aimed at the press were considered and then discarded from the final bill, which generally requires an intent to harm the United States or aid a foreign government. That said, the act has been trotted out on occasion to threaten reporters, though never to actually prosecute them. In addition to the Tribune case during World War II, the Espionage Act was considered in the Pentagon Papers case. Though the Nixon administration didn’t refer to it in its briefs, several justices, especially Byron White, held forth in their opinions that it might be possible to charge newspapers for violating the act for publishing national security secrets in certain circumstances. Those ruminations were not part of the ruling but have provided grist for legal theorists in favor of the idea. The act was used, if unsuccessfully, to prosecute the leakers in the case, Daniel Ellsberg and Anthony Russo. In a more obscure case, Samuel Morison, a part-time civilian analyst and contributing writer for Jane’s Defence Weekly, was convicted under the act for publishing secret photographs he stole while working for the government. More recently, in a closely watched case, two lobbyists are being prosecuted under the act for receiving classified information and providing it to Israel. The case is viewed as having implications for journalists, though the judge has resisted making it into a test case of press freedoms (see sidebar, page 23).
In all of these cases, it should be noted, the defendants were either giving direct assistance to a foreign government or had actively misappropriated classified information. To date, there has been no case in which a working journalist in passive receipt of classified information has been prosecuted under the act for publishing the information. Such a case would bump up against the First Amendment, which the Supreme Court has consistently said trumps overly broad laws that impinge upon free-speech rights. And the absence of such cases means that for now a zone of ambiguity dealing with the publication of classified information concerning national security still exists. Maybe cooler heads will conclude that ambiguity serves the purposes of both the press and the president.
Still, the effort to clarify the situation rumbles on in Congress. In that May hearing of the House Permanent Select Committee on Intelligence, a central topic was whether the United States needed new laws that would better enable prosecutors to go after journalists who publish classified information, perhaps something like Britain’s Official Secrets Act, which places wide swaths of information off limits to journalists.
How that could coexist with the First Amendment isn’t quite clear. Perhaps knowing that, even the press critics at the hearing didn’t seem to think the new laws were a great idea. John Eastman, a professor at Chapman University School of Law, argued that the Espionage Act is sufficient for the job and was undaunted by the fact that it had never been used against the press. “We may never know how great the damage to our national security the recent disclosures of classified, highly sensitive intelligence-gathering information have caused,” Eastman noted in his testimony, “but . . . it is certainly the right, and may well be the duty, of the executive to prosecute those responsible for them.”
But there’s the rub: Should you prosecute a free-speech crime before you know if that disclosure has done any damage? As other witnesses at the hearing noted, administrations have a tendency to exaggerate the damage done by leaks. That was certainly the case in the Bay of Pigs invasion, when President Kennedy first leaned on The New York Times not to report the covert operation, then later told publisher Orville Dryfoos that he wished the paper had ignored him and saved his administration from its biggest fiasco. That was also the case with the Pentagon Papers, when Richard Nixon was at first blasé about the leaked report and only made it an issue of national security after his advisers convinced him the leak made Nixon look weak in the eyes of other world leaders. More recently President Bush complained that “the fact that we were following Osama bin Laden because he was using a certain type of phone made it into the press as the result of a leak.” Bin Laden, so the story goes, promptly ditched his phone after that fact was revealed in a story in the Washington Times, taking away a crucial capability to monitor his movements. The allegation was also cited in the Report of the 9/11 Commission and by two former Clinton administration officials in a best-selling book. But as Glenn Kessler of The Washington Post established, stories about bin Laden’s use of a satellite phone had actually been in the press for years without causing any change in his behavior.
Even the example of the Chicago Tribune, resurrected precisely because it so clearly seems an egregious example of journalistic misconduct, is a little more complicated, and illuminating, than it first appears. After the article ran, Byron Price, director of the wartime censorship program, said that even if the Tribune had submitted Johnston’s story to the government for review, it would not have been killed because the Code of Wartime Practices for journalists at the time did not cover reports of enemy ships in enemy waters, a fact the Tribune was aware of before it published the piece. More to the point, many in the government viewed the case principally as a way to punish Robert McCormick for his vitriolic opposition to Roosevelt and the New Deal, rather than as an issue of national security.
At the House hearing, Commentary’s Gabriel Schoenfeld testified about the Tribune episode and argued forcefully that reporters who publish stories based on leaks of classified information should be subject to prosecution. Nearby, Dana Priest, one of the reporters most frequently tabbed by hardliners as worthy of being put in the dock, seemed to be paying scant attention. Instead, she and the Post lawyer Eric Lieberman, who was sitting next to her, were glued to their Blackberry PDAs as word circulated through the hearing room that shots had been fired in the building, which was therefore being locked down. At the end of the hearing committee chairman Hoekstra announced that, owing to the lockdown, no one would be leaving the room.
For the next few hours the crowd mingled easily, debating issues, swapping stories, phoning in dispatches, until around 3 p.m. when an FBI SWAT team poured through the door in black Kevlar vests and black helmets and wielding automatic weapons, trigger fingers at the ready. “HANDS ON YOUR HEAD! HANDS ON YOUR HEAD!” they shouted, in a credible imitation of Jack Bauer confronting a double-dealing CTU agent on 24. Already, word had filtered in that the whole mess was probably nothing (it turned out that a jumpy congressman had misinterpreted some construction noise for gunfire), so the commando tactics seemed a little extreme. Nevertheless, the milling herd of reporters, lawyers, and politicians stood there obediently, hands on heads, arms aching, until we were lined up and led out under armed guard in little groups of ten. Somehow, given the times, it seemed a fitting end to the day.
Douglas McCollam, a contributing editor to cjr, is based in Washington. He is currently working on a book about the Palmer raids of the 1920
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