Secrets, Leaks, and the Imperative of Truth and Transparency

14 March, 2021

“Palimpsest” paint­ed for the 2020 Protest the Hero album cov­er, by artist Mar­tin Wittfooth.

Nation­al Secu­ri­ty, Leaks and Free­dom of the Press: The Pen­ta­gon Papers Fifty Years On
Edit­ed by Geof­frey R. Stone and Lee C. Bollinger
Oxford Uni­ver­si­ty Press (April 2021)
ISBN: 9780197519387

Stephen Rohde

One could argue that the Unit­ed States is not a democ­ra­cy in which per­son­al pri­va­cy enjoys broad pro­tec­tion and the gov­ern­ment large­ly func­tions in the open. Quite the oppo­site. Increas­ing­ly, pri­vate indi­vid­u­als and orga­ni­za­tions are sub­ject to unprece­dent­ed sur­veil­lance and inva­sions of pri­va­cy, while the gov­ern­ment is able to oper­ate behind a heavy cloak of secre­cy, pro­tect­ed by a thick­et of laws, reg­u­la­tions, court rul­ings, poli­cies, and norms that under­mine and crim­i­nal­ize efforts to expose offi­cial wrong­do­ing, ille­gal­i­ty, men­dac­i­ty and corruption. 

The Amer­i­can pub­lic deserves to know what its gov­ern­ment is doing so the peo­ple can ful­fill the ideals of self-gov­ern­ment. And the truth has nev­er been more impor­tant, espe­cial­ly at a time when a Pres­i­dent of the Unit­ed States can lie to the peo­ple more than 30,000 times. 

This hyper-secre­cy is notably preva­lent in the area of nation­al secu­ri­ty, where there is an epi­dem­ic of over-clas­si­fi­ca­tion of vital infor­ma­tion by the gov­ern­ment. And this unwar­rant­ed gov­ern­ment secre­cy sets the stage for leaks and whistle­blow­ing, which in recent years has result­ed in an unprece­dent­ed num­ber of crim­i­nal pros­e­cu­tions, includ­ing, most famous­ly, Chelsea Man­ning, Edward Snow­den, and Julian Assange.

Fifty years ago, in 1971, the U.S. Supreme Court, in the famous Pen­ta­gon Papers case, reject­ed an attempt by the Nixon admin­is­tra­tion to enjoin the New York Times and the Wash­ing­ton Post from pub­lish­ing excerpts of a clas­si­fied, sev­en-thou­sand-page report recount­ing the his­to­ry of Amer­i­ca’s involve­ment in the Viet­nam War that had been leaked by Daniel Ells­berg, a gov­ern­ment employ­ee work­ing for the Defense Depart­ment.  The major­i­ty, in a 6–3 vote, held that a pri­or restraint on free­dom of expression—restraining speech before it is even published—was pre­sump­tive­ly uncon­sti­tu­tion­al and that Nixon’s Depart­ment of Jus­tice had failed to car­ry its bur­den of proof to present suf­fi­cient evi­dence of harm to nation­al secu­ri­ty to over­come that presumption.

This title is available from  Oxford University Press .

This title is avail­able from Oxford Uni­ver­si­ty Press.

The Pen­ta­gon Papers deci­sion was a sig­nif­i­cant First Amend­ment vic­to­ry.  What are often over­looked, how­ev­er, are aspects of the rul­ing that con­tin­ue to pose seri­ous threats to free­dom of the press.  Under the law, a pri­or restraint can still be upheld if the gov­ern­ment presents evi­dence of extra­or­di­nary cir­cum­stances which five mem­bers of the Court deem suf­fi­cient to over­come the pre­sump­tion.  Such a rul­ing is now more like­ly than ever giv­en the super-major­i­ty of six con­ser­v­a­tives on the Court. 

In addi­tion, the Pen­ta­gon Papers deci­sion affords no pro­tec­tion for the leak­ers who make unau­tho­rized dis­clo­sures.  In fact, Ells­berg him­self was crim­i­nal­ly pros­e­cut­ed until the charges were dis­missed due to pros­e­cu­to­r­i­al mis­con­duct.  Because the Times and the Post had not solicit­ed the leaked mate­ri­als or par­tic­i­pat­ed in Ells­berg’s acqui­si­tion and copy­ing, the Court did not decide—and has yet to decide—whether the press pos­sess­es a right to elic­it clas­si­fied infor­ma­tion or assist poten­tial leak­ers in obtain­ing and trans­fer­ring such mate­r­i­al to the media.  This is indeed a cen­tral issue in the Assange pros­e­cu­tion.  And it may come as a sur­prise that the Court has nev­er rec­og­nized a gen­er­al con­sti­tu­tion­al right of the pub­lic to have access to infor­ma­tion in the hands of the government. 

The Pen­ta­gon Papers deci­sion left in place these and oth­er trou­bling ques­tions, which the Court has not answered to this day.  To address those crit­i­cal ques­tions, Lee Bollinger, Pres­i­dent of Colum­bia Uni­ver­si­ty, and Geof­frey Stone, Pro­fes­sor of Law at the Uni­ver­si­ty of Chica­go, have gath­ered a wide array of essays from two dozen lead­ing thinkers in their intrigu­ing new book Nation­al Secu­ri­ty, Leaks, and Free­dom of the Press: The Pen­ta­gon Papers Fifty Years OnThis com­pre­hen­sive vol­ume sets out to explore “one of the most vex­ing and peren­ni­al ques­tions fac­ing any democ­ra­cy,” name­ly, “how to bal­ance the gov­ern­men­t’s legit­i­mate need to con­duct its oper­a­tions — espe­cial­ly those relat­ed to pro­tect­ing nation­al secu­ri­ty — with the pub­lic’s right and respon­si­bil­i­ty to know what its gov­ern­ment is doing.” 

At a 2016 hear­ing before the House Com­mit­tee on Over­sight and Gov­ern­ment Reform, Chair­per­son Jason Chaf­fetz (R. Utah) not­ed that 50 to 90 per­cent of clas­si­fied mate­r­i­al is not cor­rect­ly des­ig­nat­ed.  Near­ly a decade ear­li­er, for­mer US diplo­mat George Ken­nan like­wise observed that “upwards of 95%” of infor­ma­tion about for­eign gov­ern­ments is avail­able from open sources but nev­er­the­less is clas­si­fied by the US gov­ern­ment. In their essay in Nation­al Secu­ri­ty, Leaks, and Free­dom of the Press, Kei­th B. Alexan­der, for­mer Direc­tor of the Nation­al Secu­ri­ty Agency, and Jamil N. Jaf­fer, Founder and Exec­u­tive Direc­tor of the Nation­al Secu­ri­ty Insti­tute and Pro­fes­sor at the Antonin Scalia Law School at George Mason Uni­ver­si­ty, con­cede that 50 to 90 per­cent of clas­si­fied infor­ma­tion is “mis­la­beled” and that “much infor­ma­tion could be declas­si­fied with fair­ly lim­it­ed, if any, harm to nation­al security.” 

50 to 90 per­cent of clas­si­fied mate­r­i­al is not cor­rect­ly des­ig­nat­ed.

— Jason Chaffetz

As Avril Haines, for­mer White House Deputy Nation­al Secu­ri­ty Advi­sor, writes, due to over-clas­si­fi­ca­tion and exces­sive secre­cy, our cur­rent Supreme Court frame­work “bizarrely” depends “on gov­ern­ment employ­ees, con­trac­tors, or oth­ers to break the law and, where rel­e­vant, the terms they have agreed to in the course of their employ­ment, in order to dis­close infor­ma­tion that many of the Jus­tices indi­cat­ed was pre­cise­ly what the Founders would have want­ed to see pub­lished under the First Amendment—information expos­ing con­tro­ver­sial gov­ern­ment action essen­tial for the pub­lic to know in order to hold the gov­ern­ment account­able, as our polit­i­cal sys­tem envisions.”

Haines adds that “with an increas­ing­ly pow­er­ful exec­u­tive branch, a weak Con­gress, and the like­ly con­tin­ued use of US mil­i­tary force abroad, it seems clear that the need has nev­er been greater for a frame­work that pro­motes the dis­clo­sure of clas­si­fied infor­ma­tion when it is impor­tant to an informed pub­lic debate, as the pub­lic may be the only effec­tive restraint on exec­u­tive pol­i­cy and pow­er in this realm.” 

Yet while the wor­thy essay­ists in this time­ly book—and the rest of us—sit back and com­fort­ably debate the devel­op­ment of a new “frame­work” that pro­motes an enlight­ened cit­i­zen­ry instead of per­va­sive secre­cy and con­ceal­ment, a hand­ful of brave indi­vid­u­als have placed truth-telling above their own per­son­al lib­er­ty.  In March 2013, Edward Snow­den, hav­ing worked as a sys­tem admin­is­tra­tor and infra­struc­ture ana­lyst for the CIA, Dell, and Booz Allen Hamil­ton, under con­tract to the Nation­al Secu­ri­ty Agency, reached his break­ing point as he watched Direc­tor of Nation­al Intel­li­gence James Clap­per lie under oath to Con­gress.  Snow­den has since stat­ed in tes­ti­mo­ny to the Euro­pean Par­lia­ment and in numer­ous inter­views that he had expressed his con­cerns about NSA domes­tic spy­ing to at least ten offi­cials, all of whom told him to stay silent.  Con­se­quent­ly, in June 2013, he revealed thou­sands of clas­si­fied NSA doc­u­ments to jour­nal­ist Glenn Green­wald and oth­ers, lead­ing to star­tling news sto­ries in The Guardian, the Wash­ing­ton Post, and oth­er pub­li­ca­tions.  On June 21, 2013, the Oba­ma Depart­ment of Jus­tice unsealed an indict­ment against Snow­den on two counts of vio­lat­ing the Espi­onage Act of 1917 and theft of gov­ern­ment prop­er­ty.  Snow­den secured asy­lum in Moscow and was grant­ed per­ma­nent res­i­den­cy in Octo­ber 2020. 

As report­ed by the Wash­ing­ton Post, Snow­den’s dis­clo­sures revealed for the first time that the “Nation­al Secu­ri­ty Agency and the FBI are tap­ping direct­ly into the cen­tral servers of nine lead­ing US Inter­net com­pa­nies, extract­ing audio and video chats, pho­tographs, e‑mails, doc­u­ments, and con­nec­tion logs that enable ana­lysts to track for­eign targets.” 

Snow­den has been labeled both a trai­tor and a hero, but either way, sev­er­al essays in Nation­al Secu­ri­ty, Leaks, and Free­dom of the Press cred­it him with prompt­ing “an impor­tant and democ­ra­cy-enhanc­ing debate,” as not­ed by Lisa O. Mona­co, for­mer Home­land Secu­ri­ty and Coun­tert­er­ror­ism Advi­sor and cur­rent­ly Dis­tin­guished Senior Fel­low at the Reiss Cen­ter on Law and Secu­ri­ty at New York Uni­ver­si­ty.  In the wake of Snow­den’s rev­e­la­tions about NSA spy­ing, Pres­i­dent Oba­ma ter­mi­nat­ed sur­veil­lance under con­tro­ver­sial Sec­tion 215 of the USA Patri­ot Act and estab­lished a new Pri­va­cy and Civ­il Lib­er­ties Over­sight Board.  The USA Free­dom Act of 2015 was enact­ed and the gov­ern­ment declas­si­fied more than forty pre­vi­ous­ly secret opin­ions and orders of the For­eign Intel­li­gence Sur­veil­lance Court.  But while the Post and the Guardian shared the pres­ti­gious Pulitzer Prize for pub­lic ser­vice in 2014 for report­ing based on the mate­r­i­al Snow­den dis­closed, Snow­den has received no such hon­ors.  Instead, he has been indict­ed and remains liv­ing in exile in Moscow.

Edward Snowden, Julian Assange & Chelsea Manning statues by Italian sculptor David Dormino, Alexanderplatz - Berlin 2015.

Edward Snow­den, Julian Assange & Chelsea Man­ning stat­ues by Ital­ian sculp­tor David Dormi­no, Alexan­der­platz — Berlin 2015.

Much the same is true of Man­ning and Assange.  Chelsea Man­ning was sen­tenced to 35 years in prison (com­mut­ed to 7 years time-served by Pres­i­dent Oba­ma) for dis­clos­ing evi­dence of US war crimes to Wik­iLeaks.  Today, Julian Assange, founder of Wik­iLeaks, is sit­ting in a British jail, fac­ing up to 175 years in prison if con­vict­ed under the Espi­onage Act, while the Times, the Post, the Guardian, and news out­lets around the world pub­lished ground-break­ing sto­ries based on the infor­ma­tion revealed by Wik­iLeaks.  Assange’s pros­e­cu­tion is unprece­dent­ed; it is the first time a pub­lish­er has been charged for reveal­ing clas­si­fied infor­ma­tion.  The Oba­ma admin­is­tra­tion declined to pros­e­cute him, cit­ing “the New York Times Prob­lem:” How can you jus­ti­fy indict­ing Assange if you don’t indict main­stream media that rou­tine­ly pub­lish­es leaked clas­si­fied information? 

The prob­lem is not lim­it­ed to these par­tic­u­lar cas­es. Accord­ing to the essay by Stephen J. Adler, Edi­tor-in-Chief of Reuters, and Bruce D. Brown, Exec­u­tive Direc­tor of the Reporters Com­mit­tee for Free­dom of the Press, in the last ten years, “the gov­ern­ment has brought eigh­teen cas­es against jour­nal­is­tic sources and an addi­tion­al two based on the pub­lic dis­clo­sure of clas­si­fied infor­ma­tion out­side of the news media context.” 

In 1974, Han­nah Arendt warned us that “if every­body always lies to you the con­se­quence is not that you believe the lies, but rather that nobody believes any­thing any longer.…And a peo­ple that no longer can believe any­thing can­not make up its mind. It is deprived not only of its capac­i­ty to act but also of its capac­i­ty to think and to judge. And with such a peo­ple you can then do what you please.” 

Wide­spread gov­ern­ment secre­cy, along­side the pun­ish­ment of truth-tellers, betrays fun­da­men­tal prin­ci­ples under­ly­ing our democ­ra­cy. The Supreme Court has repeat­ed­ly declared that the First Amend­ment reflects “a pro­found nation­al com­mit­ment to the prin­ci­ple that debate on pub­lic issues should be unin­hib­it­ed, robust, and wide-open” in order to pro­vide “free polit­i­cal dis­cus­sion to the end that the gov­ern­ment may be respon­sive to the will of the peo­ple.” Secre­cy and lies deprive the peo­ple of the capac­i­ty to think, to judge, and to thrive in a free and open democracy.

Chelsea ManningCIADaniel EllsbergEdward SnowdenJulian AssangeNSAPentagon PapersReview

Stephen Rohde is a writer, lecturer and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law. He is a past chair of the ACLU Foundation of Southern California and past National Chair of Bend the Arc, a Jewish Partnership for Justice. He is a founder and current chair of Interfaith Communities United for Justice and Peace; member of the Board of Directors of Death Penalty Focus, and a member of the Black Jewish Justice Alliance. Mr. Rohde is the author of American Words of Freedom and Freedom of Assembly and numerous articles and book reviews on civil liberties and constitutional history for the Los Angeles Review of Books, American Prospect, LA Times, Ms. Magazine, Los Angeles Lawyer and other publications. He is co-author of Foundations of Freedom published by the Constitutional Rights Foundation.