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.

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.

Wait a minute, you may be thinking. That means that Edward Snowden could've leaked his NSA slides to a sales clerk at H&M, or a meth-addicted homeless man on Venice Beach, and if that person set up a Tumblr at an Internet cafe to opine on the slides, even they could publish hugely sensitive secrets with no legal consequences. We'd be at the mercy of citizen journalists on meth. Or even bath salts!

To which I reply, so what? Oh, I get why the idea of it is horrifying, if you don't think about it very hard. But let's grapple with what it really means that one doesn't need a printing press or a broadcast tower these days to get information to a global audience. It means that government employees intent on leaking classified information don't need journalists at all. In a world where the U.S. government was sure to prosecute people like Greenwald, Poitras, and Gellman, or where it could preemptively ban the publication of secrets, as some in the national-security state desire, Snowden wouldn't have not leaked the secrets he believed all of us should know.

He would've just bypassed the press. (Or gone to journalists in another country, where they also post their stories to the Internet.) Today, any leaker can get the word out. Linker titled his piece, "No, Glenn Greenwald cannot be the one who decides what stays secret." Let's not forget that neither Greenwald nor any other journalist has any decision to make until a government employee or contractor with classified information makes their own decision that an improper secret is being kept. It is incorrect to say that, under my system, journalists are the only ones deciding, and in this particular case, had Greenwald said, "Sorry, Edward, the threat of prosecution is so big a disincentive that I won't participate in this story," Snowden would have gotten his slides out anyway. In what sense was Greenwald the primary decider?

That isn't to say that all decisions by government leakers are correct.

Somewhere there's a guy with the nuclear codes. Under my system, he technically could pass them off to that Venice Beach meth addict, who could publish them on Tumblr without going to jail by claiming that he was operating as a journalist*. Obviously, none of us wants the meth addict (who by the way is a racist, child-molesting puppy-mill operator) to be the individual who makes the call about whether the nuclear codes get revealed. But come on. If the keeper of the nuclear codes is already passing them off to a random degenerate who obviously shouldn't be "the decider"—or if underpants-clad bloggers can figure out damaging secrets with a little bit of digging—how much national-security protection are we actually gaining by giving government the right to punish whoever hits publish on Blogspot? If in a moment of clarity meth man decides not to publish, for fear of prosecution, what's to stop the guy with the codes from finding another meth head? Or from publishing himself? He was risking the same punishment just by leaking. It would be safer to download Tor, find a coffee shop, and put the story out himself.

These are wild hypotheticals. It's little surprise we've wound up here. The whole approach that Kinsley and Linker have taken to this subject is disconnected from reality. It reminds me of the people who don't want to deny government's ability to torture just in case there's a "ticking time-bomb scenario" one day ... even though that's never happened in history.

Let's ground the decision about publishing classified information in reality.

In reality, the government often does serious damage to the U.S. by making the wrong judgment call on classification. Officials are the most biased judges when it comes to these decisions because, often times, the truth reveals their own incompetence or illegal behavior, and suppressing the truth always inflates their relative power and importance. There is no more biased decider than government officials.

In reality, journalists making "wrong calls" on classification have done so little damage that it's hard to cite examples that show any lasting harm. There aren't horror stories in which America was gravely damaged due to journalists spilling a precious secret (though government often predicts disasters that never come). We've gotten along quite well for decades without prosecuting any journalists, even though there were countless leaks in that period. There were some threats of prosecution in that period—and virtually all of them reflected badly on government in hindsight.

Kinsley and Linker can only gesture at hypothetical harms that could occur if journalists published without fear of prosecution. They ground their whole position in a thought experiment rather than in decades of lived experience. Alarms are raised about vesting too much responsibility in journalists of "dubious" credentials. Fear is stoked at the superficially frightening idea that cute animal curators at BuzzFeed could wind up making the call. But no one explains how these people would come into America's top secrets. In what world will the cute puppy aggregator find himself holding a list with the names of every undercover CIA agent? And even then, wouldn't he probably not publish?

In reality, it is almost always seasoned national-security reporters who get sensitive leaks. Linker implies that if they were the ones making the call he'd feel much better about my standard. Well, in practice, isn't that exactly how things typically work?

In reality, the exceptions to that rule involve spies who sell directly to foreign governments, or unusual people like Daniel Ellsberg and Snowden, who are bound and determined to make classified information public one way or another. And come to think of it, Snowden went to "real journalists" by any reasonable definition.

In reality, if CuteOverload's designated otter blogger can stumble onto highly classified information, it wasn't secure anyway and surely won't stay secret for long.

In reality, the system Kinsley and Linker endorse, had it become accepted and uncontroversial years ago, would've helped to forever suppress J. Edgar Hoover's misdeeds, the Pentagon Papers, Watergate, aspects of 9/11 that reflected poorly on Bush, prisoner abuse at Abu Ghraib, warrantless wiretapping—the list of horrors goes on. No comparable list of horrors would've credibly happened had my system been in place.

That's why I continue to stand by the conclusion of my earlier article—that opposition to my system seems rooted in general disdain for non-experts and a reflexive aversion to non-governmental actors exercising an important discretionary role in American governance. For many, it just cannot be that journalists are permitted to make these sorts of calls without risk of prosecution. But why? Exemption from prosecution has a proven track record of delivering public goods at a very low, mostly hypothetical cost. Having been permitted to publish secrets, the press has demonstrably performed better than the government in deciding what ought to be made public and what secrets should be kept. That wouldn't surprise the Framers, who predicted as much when they passed the First Amendment. "Congress shall make no law ... abridging the freedom of speech, or of the press." The Framers are emphatic: The press, not the government, better decides what is printed for the public. If publishing verified truths about government isn't covered, what is?

The government can classify anything it wants. It can prosecute any government employee for leaking classified information. That is a significant amount of concentrated power. A free press that can publish without fear of prosecution is the check. Everything we know about history suggests that check is badly needed. Nothing in our history suggests that check is too dangerous to national security to maintain.

* Speaking of a world where any American can suddenly function as a journalist, a reality Linker and I agree upon, I have a question for him. Let's say that Snowden had walked into a bar in Honolulu, had a few tequila shots, started chatting with the 20-year-old surf instructor sitting next to him, and said, "Hey man, I work at the NSA, and just so you know, the government is using Section 215 of the Patriot Act to spy on every phone call anyone in America makes. That's messed up, right?"

As a general matter, I assume Linker and I agree that it isn't ideal for 20-year-old surf instructors in Hawaii to be "the deciders" about whether national-security secrets are revealed. But let's say that the surfer takes out his iPhone, logs onto Twitter, and types, "Dude, drunk NSA employee just told me gov't uses Patriot Act to spy on all phone calls. Section 215 wut?" Then he tweets, "whoa I suddenly feel like an important journalist. What do you think @NYTIMES job offer lol?" As Linker sees it, the surfer has a plausible claim that he's engaging in journalism (or at least Linker thinks the profession shouldn't be regulated in a way that would exclude him).

So does Linker think that the government should be able to prosecute the surfer-journalist for publishing classified information? If a random citizen is told a state secret in a bar, such as, "We're spying on all of you, suckers!" should that citizen be subject to punishment for revealing what was said to him by a security-cleared government employee? If you believe that anyone can be a journalist, and that journalists should be subject to prosecution for revealing classified information, then you believe that the government should have the power to prosecute that surfer for his tweet. That would be a gnarly bummer, dude.