Why It Shouldn't Be Criminal to Report Government Secrets

Prosecuting journalists imposes huge costs, yields scant benefits, and is mostly pointless in an era when anyone can reach a mass audience.
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Should the government be permitted to prosecute journalists for revealing classified information? Damon Linker of The Week has joined the debate around that question, endorsing Michael Kinsley's controversial argument that journalists must not have a free pass to release government secrets with no legal consequences. In doing so, Linker graciously cited my counterarguments as the strongest and most concise, though he ultimately regards them as wrongheaded and unpersuasive.

Linker insists the government must decide what stays secret. To review my position:

  • On scores of prominent occasions, journalists have published classified information that served the national interest in significant ways. We can all think of multiple examples and public goods that directly resulted. Whereas it is very difficult to think of a classified secret exposed by journalists that caused significant harm. Ponder the damage done by history's most harmful journalism-enabled leaks. What are they? It's telling that no examples come to mind.
  • That's not to say that no legal consequences should ever stem from a leak. The least-bad system is one where government decides what information is properly classified, leakers can be charged and punished for revealing classified secrets (which isn't to say that they always should be prosecuted), but where publishing journalism based on classified leaks is not criminalized.

"That sounds like a perfectly reasonable compromise," Linker writes, "at least until you think it through." A lengthy argument follows. It seems mistaken to me in almost every respect. I hasten to add that Linker is typically brilliant and a favorite writer of mine, so perhaps I am missing something, but in this case I just don't see it. He writes:

Permitting journalists to publish anything and everything that gets leaked to them, under no possible threat of prosecution, would make it nearly impossible to prosecute a leaker, since the harmlessness of the leak would automatically be demonstrated the moment a journalist makes the decision to publish the classified information. After all, in Friedersdorf's least-bad system, it's journalists who decide what can and can't be made public, based in part on their assessment of the likely public harm. This means that as soon as classified information gets published by a journalist, the leaker would instantly be exonerated. To which many will no doubt respond: So what? That's exactly how it should work!

That's flat-out wrong.

A journalist's decision to publish classified information does not establish its harmlessness. After all, the journalist may be wrong. Nor does it make prosecuting the leaker "nearly impossible." Say an official at Fort Knox leaks classified security procedures to a writer at Vice, who publishes an article: "We Dared Ron Paul to Steal All the Gold From Fort Knox and Told Him Exactly How." Glenn Beck reads it, pings some hardcore fans, sketches the security vulnerabilities on a chalkboard, slips into Fort Knox without getting caught, and flees to Ecuador with the gold. Would it be impossible for the feds to prosecute the official who leaked? Not under the policy I suggested.

Prosecuting the leaker would be easy. In fact, under the standard I advocated, a robbery wouldn't even have to take place to prosecute the leaker. All the government would have to prove is that he leaked classified information, not even that the leak did any harm. So no, my standard in no way confers instant exoneration on leakers when journalists publish. There would, of course, be cases where it would de obvious, in the aftermath of a leak, that it did no actual harm, which might make it harder, politically, for government to prosecute the leaker. That's a feature, not a bug! Linker seems strangely concerned about harmless leaks going unpunished.

Let's return to his words:

This means that as soon as classified information gets published by a journalist, the leaker would instantly be exonerated. To which many will no doubt respond: So what? That's exactly how it should work! Except for one additional consideration, which Kinsley raised in his original review. In the age of blogs, portable audio and video recording, instant messaging, and social media platforms, "it is impossible to distinguish between a professional journalist and anyone else who wants to publish his or her thoughts." We're all journalists now.

In such a world, Friedersdorf's rules produce a situation in which any leaker who leaks any information to anyone willing to publicize it is automatically absolved of any crime. In such a world—a world completely lacking in disincentives to leak classified information—government secrecy would be rendered impossible.

This, too, is obviously wrong. Bradley Manning had a huge disincentive to leak classified information, regardless of whether Julian Assange was subject to prosecution. Edward Snowden had a huge disincentive to leak, regardless of whether Glenn Greenwald, Laura Poitras, or Barton Gellman was subject to prosecution. A world where leakers are subject to imprisonment for decades, but the people they leak to aren't, isn't a world "completely lacking in disincentives to leak." The disincentives are being fired, being caged, and possibly harming one's country.

Moreover, not even journalists are "completely lacking" in disincentives to leak under my system. Not endangering innocents is an incentive. Not undermining the national security of the nation where one's family lives is an incentive. Not angering the audience of one's publication with an irresponsible leak is an incentive. Lots of journalists have decided not to publish something even absent fear of prison.

Ask Bill Keller.

Additionally, digital technology—the shift to a world where anyone can act as a journalist—actually cuts in exactly the opposite direction from what Kinsley and Linker imagine.

Before I explain why, here's the rest of Linker's argument:

We're all journalists now.

In such a world, Friedersdorf's rules produce a situation in which any leaker who leaks any information to anyone willing to publicize it is automatically absolved of any crime. In such a world—a world completely lacking in disincentives to leak classified information—government secrecy would be rendered impossible.

"But no," I imagine Friedersdorf objecting. "I mean real journalists, working for established, recognized media companies. Only they should be given the power to decide what to publish."

To which the proper reply is to repeat Kinsley's line that making such a call—deciding who is and who is not a "real" journalist—is impossible. Sure, we can agree that a journalist employed by The New York Times or The Atlantic is an authentic journalist entitled to make the hard calls on secrecy. But what about a reporter working for BuzzFeed? Or a reporter working for BuzzFeed six years ago, when it had little politics coverage and was known primarily for its cat-photo click-throughs?

And what about self-employed blogger Andrew Sullivan? Is he a journalist? If someone leaked classified information to him, should he have blanket authorization to decide whether to publish it? What about someone who runs a blog with a tenth of Sullivan's traffic and journalistic experience? A hundredth? A thousandth?

We seem to have a problem. Either anyone or everyone gets to make the call, rendering state secrets impossible, or we need some independent authority to decide who is and who is not empowered to make the call. Government licensing of journalists? That's where Friedersdorf's "least-bad system" leads us, I'm afraid.

My system emphatically does not lead to government licensing of journalists. At most, it necessitates the quite reasonable standard that one tiny class of people—government employees who've agreed to protect classified secrets—are not journalists.

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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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