The Government Isn't Very Good at Deciding What to Keep Secret

So why do so many Americans insist that the state, not the press, should call the shots?
Daniel Ellsberg, the Pentagon papers leaker, is arrested at an Iraq War protest in 2002. Ice-cream impresario Ben Cohen looks on at left. (Reuters)

The U.S. government routinely tries to hide its unlawful behavior. It hides mistakes and incompetence too. Exposing that misbehavior sometimes requires publishing classified information, like the Pentagon Papers or accounts of warrantless wiretapping in the Bush Administration. That's a historical fact, not an opinion.

Writing in the New York Times Book Review, Michael Kinsley declares, "The Snowden leaks were important—a legitimate scoop—and we might never have known about the N.S.A.'s lawbreaking if it hadn’t been for them." As he sees it, unauthorized disclosures of classified information typically benefit the public. "Most leaks from large bureaucracies are 'good' leaks," he writes. "No danger to national security, no harm to innocent people, information the public ought to have."

How strange to believe that while also insisting that the publication of leaks by journalists should be criminalized—which is what Kinsley does later in the same article.

"It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets and a free pass to make them public with no legal consequences," he writes. "In a democracy ... that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making—whatever it turns out to be—should openly tilt in favor of publication with minimal delay. But ultimately ... someone gets to decide, and that someone cannot be Glenn Greenwald."

Kinsley is offering a mainstream position: that government "must" have the final say, not some pixel-pusher elected by no one. But I don't think he can persuasively defend that position, having already stipulated that the Snowden leaks are a legitimate scoop, especially if he's unwilling to call for journalists at The Guardian, the Washington Post, and the New York Times to be charged criminally. 

In defense of the role journalists at those publications play: The least-bad system isn't one where government punishes journalists at its discretion, or can preemptively stop them from publishing classified information. Neither is the least-bad system one in which government employees can leak anything—nuclear codes, troop movements—without legal consequences.

The least-bad system is one where leakers can be charged and punished for giving classified secrets to journalists (which isn't to say that they always should be), but where journalism based on classified information is never criminalized. Insofar as that standard is anti-democratic, it is no more anti-democratic than the First Amendment to the Constitution, in which it is grounded. "Congress shall make no law... abridging the freedom of speech, or of the press." That is an explicit protection for newspapers to publish in the face of government objections. 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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