"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.