Wolf, Neuborne, Marshall Reflect on Implications of Pentagon Papers Story for Journalists and Law Today

April 17th, 2010

On March 27, the final Spring 2010 Top Secret Talks discussion brought audiences a nuanced reflection on many of the legal and journalistic forces at play behind the Pentagon Papers story.

Joining for this panel discussion were: the Honorable Mark L. Wolf, Chief Judge, U.S. District Court, District of Massachusetts and former First Deputy U.S. Attorney and Special Assistant to the United States Atorney General; Burt Neuborne, Inez Milholland Professor of Civil Liberties at New York University and Legal Director of the Brennan Center for Justice who also represented Pentagon Papers leaker Daniel Ellsberg in his trial on federal espionage charges; and Joshua Marshall, leading online journalist and founder of Talking Points Memo and TPMCafe.com.

In a discussion that brought together many of the themes explored in prior Top Secret Talks, the panelists reflected on how the legal questions raised by the Pentagon Papers provide guidance for both the conduct of journalists and resolution of legal policy questions today.

Audio: Top Secret 3.27.10 Wolf, Neuborne, Marshall

To Marshall, the recent federal prosecution of I. Lewis “Scooter” Libby, Jr. and the related contempt proceeding against New York Times reporter Judith Miller provided new context for understanding the high stakes faced by the individuals who leaked and reported on the Pentagon Papers.  Witnessing both the government’s decision to prosecute Libby for allegedly leaking confidential information to the press and the jailing of Miller for refusing to disclose her source, brought home to Marshall the full panoply of consequences that could attach to gathering and reporting on confidential government information.

Marshall’s comments revealed that concern about imprisonment could certainly lead some journalists today to think twice about publishing leaked confidential documents.  Perhaps drawing on his experiences as both a judge and a prosecutor, Chief Judge Wolf noted that while some might call this a “chilling effect,” others might call it a “deterrent effect” — with deterrence being an oft-cited and generally proper goal of criminal law and prosecutions.  Especially in matters of national security, might it be appropriate for journalists and government employees to think carefully about all possible consequences when handling government that has been identified as confidential?

To tie these policy questions to now-pending legislation, Chief Judge Wolf asked the other panelists for their thoughts on a proposed federal shield law, a law summarized on this blog here.

Although a journalist and a civil liberties lawyer might be expected to come out in favor of a law designed to shield journalists from disclosing confidential sources, both Marshall and Neuborne — perhaps to everyone’s surprise — came out against a federal shield law.

Marshall opposed the idea because it seemed to artificially distinguish between “journalists” and other members of the public at a time when the internet makes that distinction less clear.   Neuborne, on the other hand, opposed the proposed shield because he felt it could operate to protect the government by allowing government officials to selectively disclose information to journalists knowing that those journalists would not have to disclose their sources.  In fact, the source Judith Miller was refusing to identify was a government source: Mr. Libby.

Listen to the audio above for further comments and questions from these panelists and audience members on the duties of journalists to evaluate received leaks and information, and on policy questions about government regulation of the internet and on the differences between legal protection of government secrets and trade secrets.

Posted in Disclosure of Confidential Information, Journalism and Media, Leaks and Classified Information, Shield Laws, Top Secret Discussions, Uncategorized | 1 Comment »

A Federal Shield Law: Protecting the Press and Their Sources, but at What Cost?

April 17th, 2010

For the press to keep the public informed, the press itself must be informed.  This seems an uncontroversial statement – but supporters and opponents of a federal shield law have different takes on its implications.

Proponents of such a law argue that the press is better informed when journalists can assure their sources anonymity —particularly when those sources have highly sensitive information, perhaps pertaining to the government.  As the Los Angeles Times argues:

The Times and other major news organizations would prefer that every source for a news story be identified. But whether the subject is the Los Angeles Police Department’s past spying on political leaders or the rendition of suspected terrorists to ‘black sites’ abroad, some vital reporting is possible only if sources are promised anonymity. Without it, they won’t share information with the media.

As the Times notes, this argument and others in favor of a national shield law have been made since the 1970s, when the Supreme Court held, in Branzburg v. Hayes, that the First Amendment did not prohibit a reporter from being forced to disclose his sources.  While almost all states have either statutes or cases preventing forced disclosure, no such shield exists at the federal level.

In 2009, the Free Flow of Information Act passed in the House and in the Senate Judiciary Committee, and in February 2010 Sen. Arlen Specter (D-PA) introduced it again in the Senate.

If such a shield law does pass—and watchers deem it more likely to pass under President Obama’s administration than before—will it give journalists and their sources the security they want?

Last fall, the White House’s proposed version initially caused an outcry among journalists, who believed the administration had abandoned Obama’s prior promises. As the Washington Post wrote:

. . . the White House sent the Judiciary Committee legislative language providing little protection for journalists. It seemed to betray President Obama’s promise to support a judicial balancing test between the public interest in newsgathering and the need to compel disclosure of a reporter’s sources.

The White House then proposed a compromise that seemed to satisfy the major news outlets.  As the Washington Post explained:

Under the latest proposal, in both civil and criminal cases the government (or another party seeking disclosure) would have to demonstrate that the confidential information it seeks from a journalist is ‘essential’ to resolving the case and that it has exhausted all reasonable alternative sources. Judges would weigh the public interest in thorough newsgathering against the interest in disclosing the source. The balancing tests are calibrated depending on the nature of the case . . . .  The balancing test also covers cases involving leaks of classified information (with the journalist again bearing the burden of proof), unless the information sought would be needed to stop a terrorist attack or ‘significant and articulable harm to national security,’ in which case disclosure would be compelled. As in previous versions, the statute would not protect anyone who is affiliated with a terrorist organization or who has been designated a terrorist by the federal government.

It is difficult to find the appropriate line between the public’s interest in newsgathering and the public’s interest in protection of confidential government information, which is what opponents of the a federal shield law argue is at stake.  Michael Hayden, former CIA and NSA director, calls the proposed law a “solution in search of a problem.”  He criticizes a bill that he argues would:

. . . shift . . . national security responsibility from an elected (and accountable) president, who may have to answer for an attack on the country or its troops, to a judiciary whose role is generally not to make national security policy or balance risks to the country’s security.

At the same time, however, Hayden writes that he is not  “insensitive to the principles of the First Amendment, to the role of the press in our democracy or to the delicate balance and inherent tension between security and openness.”  It remains to be seen what Congress’ sensitivity to this tension will be.

Posted in Disclosure of Confidential Information, Journalism and Media, Leaks and Classified Information, Legal Issues, National Security, Shield Laws | 5 Comments »

Ellsberg, Gelb, Goodale, Lemann Reflect: Where are the Pentagon Papers of Today?

April 1st, 2010

Following the March 16, 2010 performance of Top Secret: The Battle for the Pentagon Papers, a post-show discussion hosted by the Columbia Journalism Review reunited some key participants in the Pentagon Papers story: Daniel Ellsberg, former military strategist and consultant at the RAND Corporation, who went against the written and unwritten rules of his profession when he leaked the Pentagon Papers to the press in 1971; Leslie Gelb, one of the main compilers of the Pentagon Papers, later a journalist and diplomat who also led the Council on Foreign Relations; and James Goodale, former in-house counsel at the New York Times.  These participants were joined, from the Journalism School at Columbia University, by Nicholas Lemann, Dean and Henry R. Luce Professor, and Victor Navasky, Chairman of the Columbia Journalism Review and Delacorte Professor of Journalism, who moderated the discussion.

Audio: Top Secret 03.16.10 Panel Discussion Ellsberg, Gelb, Goodale, Lehman, Navasky

In a lively evening, these panelists responded to questions from the audience and each other – with one highlight coming when Goodale, who had read the supposedly “top secret” papers (as counsel to the Times) when the Times obtained them, asked Gelb a question Goodale had wondered about since the 1970s: was there really any basis to mark the Papers and so many other documents “top secret”?  Gelb responded that much classification while he was at the Pentagon resulted more from a general culture of classification at the Pentagon than from any page-by-page analysis of a genuine threat posed by the papers’ release.

Perhaps the most difficult questions of the night, however, were not those about the events of the Pentagon Papers era, but those the panelists themselves raised about the state of journalism and foreign policy today.

When asked: where are the Pentagon Papers of Afghanistan?  Ellsberg challenged the U.S. government and the audience by positing that such materials couldn’t be disclosed soon enough and that they would read much like the Pentagon Papers: tracing U.S. involvement in Afghanistan back to earlier U.S. involvement there, and revealing that the U.S. troop commitment necessary to end our involvement will be much larger than is generally understood.

In support of his evaluation, Ellsberg cited the example of Matthew Hoh, a senior U.S. foreign service officer in Afghanistan who resigned publicly in protest against U.S. policy there.  While praising Hoh’s controversial actions, Ellsberg noted that Hoh’s resignation could have been more powerful if Hoh had taken documents with him for public release.

But would such “Afghanistan papers” get the public attention Ellsberg seeks?  When Ellsberg asked how many audience members had read the “Eikenberry cables” – internal state department cables containing Ambassador Karl Eikenberry’s strong reservations about General Stanley McChrystal’s recommended course in Afghanistan – only a handful of audience members raised their hands, even though the cables were reported on extensively and eventually posted by the New York Times.  Ellsberg exhorted the audience to think critically about Afghanistan and to take action to lead the nation to do the same.

The need for such critical thinking was supported further when Gelb shared his reflections on the “domino theory” that had, in his opinion, undergirded U.S. foreign policy decisions in Vietnam and which may still be at work today motivating much of the thinking behind the U.S. presence in Afghanistan.

Turning to the role that today’s journalists should play in reporting on foreign policy and other topics, Lemann noted that the most prominent recent stories about national security issues (including the Times reports on NSA wiretapping and the Washington Post reports on CIA secret prisons – both discussed elsewhere on this blog here and here) resulted not from the publication of leaked documents, but from the work of journalists to slowly uncover and piece together the details of a secret government program.

To encourage the type of critical reporting that Ellsberg and others would seem to call for, therefore, Lemann stressed that media would require additional support to build and maintain repertorial resources, including journalistic staff and foreign bureaus – a topic also discussed in a prior Top Secret Talks panel discussion.

Listen to the audio for more detail on these and other questions raised in this panel discussion!

Posted in Disclosure of Confidential Information, Foreign Policy, Journalism and Media, Resources for Investigative Reporting, Top Secret Discussions | 4 Comments »

Center for Public Integrity Hosted Discussion Reflects on Investigative Journalism Then and Now

March 20th, 2010

In the final scene of Top Secret: The Battle for the Pentagon Papers, George Wilson points out that the Post’s court victory allowing continued publication of the Pentagon Papers was especially sweet because the strong precedent it created could help protect journalists at smaller papers that lacked the Post’s resources to go to court themselves.  In light of the declining resources and profitability of the news business, one naturally wonders do media outlets today, especially newspapers, have the resources to fight court battles like those depicted in Top Secret?

The Center for Public Integrity’s post-show panel on March 11 explored this question, but also raised questions about another impact a lack of resources may have on journalism: less resources available for long-range and deeply investigated stories.

In reflecting on differences between investigative journalism today and at the time of the Pentagon Papers case, panelist Bill Kovach, former New York Times reporter and current Chairman, Committee of Concerned Journalists, commented that the expertise and investigative work displayed in researching stories on the Pentagon Papers is still necessary to produce rigorous and cutting-edge reporting today.  As the profitability of print media declines, however, Kovach wondered: are there still sufficient resources to support detailed, time- and resource-intensive reporting?

Some U.S. government departments, he noted, like the Department of Agriculture, no longer have a reporter assigned to cover them every day.  Without this daily coverage, panelist Geoffrey Cowan agreed, even seasoned journalists can lack the necessary context when they do report on an agency.  Although the number of sources of news has proliferated on the internet, it is not clear that web news sites have more resources than print media for deep, long-range investigative journalism.

Audio: Top Secret 3.11.10 Kovach, Cowan, Coronel Panel Discussion

Listen to the audio above for the Center for Public Integrity’s panel discussion, including Kovach’s story about how he placed a surreptitious call to rent one of only 4 hi-speed xerox machines in Cambridge so that Times staffers could copy their set of Pentagon Papers.

Posted in Journalism and Media, Top Secret Discussions | No Comments »

NPR on Top Secret: The Battle for the Pentagon Papers

March 18th, 2010

NPR’s Margot Adler filed this report on the current New York Theatre Workshop production of Top Secret: The Battle for the Pentagon Papers.  Download the audio here.

Adler quotes from the March 3, 2010 post-show discussion with David Rudenstine, Todd Gitlin, and Steve Wasserman, in which these scholars contrasted the historical context in which the play takes place with the different political climate that exists today.

Posted in Documentary Theater, Top Secret Discussions, Top Secret Performances | 2 Comments »

Video: Gravel Reading the Pentagon Papers

March 16th, 2010

Video of Sen. Mike Gravel Reading the Pentagon Papers into the Senate Record

Thanks to Cputer for the heads up!

Posted in Disclosure of Confidential Information, Pentagon Papers Participants | No Comments »

Re-Understanding the Pentagon Papers and Other Secrets? New Law Review Article Proposes New Framework for Government Secrecy

March 16th, 2010

The Stanford Law Review’s January 2010 issue includes Deep Secrecy, 62 Stan. L. Rev. 257 (2010), an article by recent Yale Law School grad David Pozen that proposes a new theoretical framework for understanding government secrets (pdf of article; earlier article draft on SSRN).

According to the Review’s abstract:

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.

After tracing some of the existing constituional, structural, and theoretical analyses of government secrets, Pozen applies his new framework to point out that the deeper a secret, the smaller the group of people (and possibly dissenting views) available to deliberate about it.  Pozen notes that government can still keep the substance of some government actions as “shallow secrets” while allowing additional debate and deliberation, concluding that:

Even among the subset of government secrets about which the public knows nothing . . . the comparative insularity of the deeper secrets can pose a special threat to good governance, to liberal democratic values, even to the Constitution. We cannot and should not seek to prevent the executive branch from keeping secrets. We can and should seek to have them kept as shallow as possible.

Along the way, Pozen evaluates a number of the secrets kept by the Bush administration, including many that are discussed elsewhere on this website.  For Pozen’s take on the Pentagon Papers era, see p. 292 of the article where he describes the Vietnam and Watergate era as one of the first times in American history where scholars began to see the government’s asserted need for secrecy as implicating constitutional values.

Posted in Disclosure of Confidential Information, Intelligence, Leaks and Classified Information, State Secrets doctrine | No Comments »

Listen to Nixon’s Response to the Pentagon Papers’ Publication at National Security Archive Blog

March 12th, 2010

Nate Jones at the National Security Archive Blog just put up this post that includes the audio of the June 14, 1971 tape from President Nixon’s White House recording system in which Nixon responds to the New York Times’s publication of the Pentagon Papers.

Included in this tape is H.R. Haldeman’s memorable quote – a quote that is included in Top Secret: The Battle for the Pentagon Papers, in which Haldeman notes that even though the content of the Pentagon Papers may be “gobbledygook” to the public

. . . out of the gobbledygook comes a very clear thing: You can’t trust the government; you can’t believe what they say; and you can’t rely on their judgment. And the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants [them] to do even though it’s wrong. And the president can be wrong.

Jones notes that

In time for Sunshine Week, the 2010 Oscar-nominated documentary “The Most Dangerous Man in America” (which relied upon National Security Archive documents) has re-raised the issues of government secrecy, national security, and which types of information the American public has the right to know.

We’d add that Top Secret: The Battle for the Pentagon Papers does the same.

Posted in Disclosure of Confidential Information, Documentary Theater, Journalism and Media, National Security, Pentagon Papers Participants | 3 Comments »

Top Secret: The Battle for the Pentagon Papers Opens at New York Theatre Workshop

March 12th, 2010

On March 9, Top Secret: The Battle for the Pentagon Papers, the documentary play by Geoffrey Cowan and Leroy Aarons opened at New York Theatre Workshop’s Fourth Street Theater.

Reportedly, Washington Post reporter George Wilson, who played a key role in protecting the Post against the Justice Department’s efforts to enjoin publication, was at the opening.  Wilson is the latest of several Pentagon Papers participants attending the NYTW production.  At a March 7 preview, Linda Amster, a New York Times researcher who worked on that paper’s Pentagon Papers series borrowed the microphone during the post-show discussion (audio available here) to share her memories of the dramatic and passion-filled weeks she spent working on the project.  On Tuesday, March 16, Daniel Ellsberg, the RAND analyst who leaked the Papers to the Times and the Post will share his perspective in a post-show discussion sponsored by the Columbia Journalism Review.

Responding to the opening, theater critics found the play an informative rendering of events that continue to resonate today, with Peter Santilli for the Associated Press writing that although “[i]t has been nearly 40 years since the story played out in the national media, [] the perennial struggle by the press to illuminate government secrets never seems to get old.”  The New York Times’s Charles Isherwood agreed that Top Secret provided an “intelligent and informative” dramatization of a “historic chapter in 20th-century journalism” that “continues to resonate today, as the desire of the government to keep its secrets and the responsibility of the press to monitor its workings come into frequent conflict,” although he took issue with both the presentation of the play as a radio drama and with its focus on the Washington Post’s perspective.

Posted in Pentagon Papers Participants, Top Secret Performances | 1 Comment »

Huffington Post calls Top Secret: Battle for the Pentagon Papers an “Important Stage Documentary”

March 12th, 2010

In this review on the Huffington Post, David Finkle contextualizes the current New York Theatre Workshop peformance of Top Secret: The Battle for the Pentagon Papers within the recent ascent of staged documentaries, noting:

. . . we’re living in the age of the stage documentary. . . . The intent behind these stage documentaries is to inform audiences on the truth behind significant events while appearing to be more entertaining than actual newsroom accounts.

About Top Secret, Finkle highlights several “nuggets” found in the show that “the concerned citizen doesn’t want to be without,” including:

. . . [the] story of how The Washington Post, under the command of publisher Katharine Graham (Kathryn Meisle) and editor Ben Bradlee (Peter Strauss), sought successfully to obtain a copy of the purloined artifact and to publish its contents after The New York Times had been stopped by court order.

. . .

[the story of] a court case won as the direct result of the astonishing memory of Post reporter George Wilson (Matt McGrath) . . . [and] Bradlee’s determination to get his hands on the Pentagon Papers and to publish as much of it as he and staff warranted vital for readers’ enlightenment.

Although noting that Post editor Bradlee supported publication in part, of course, protect the public’s right to know, Finkle is also finds informative the play’s dramatization of Bradlee’s other compelling motivation: to defeat the “humiliation of being scooped by The New York Times on what was essentially a Washington story.”

As Finkle says:

He was going to find a way to right the imbalance, and he did. In other words, in his campaign there’s the element of “boys with their toys.” Intriguingly, that’s not too far removed from the king-of-the-mountain games being played by Nixon and his coterie in the Oval Office. And just maybe those apparently unavoidable male inclinations explain why the situations leading to the Pentagon Papers disclosures served in no way as a deterrent in, say, the George W. Bush administration, where men at their power maneuvers thought little or nothing of lying as a means to justify their long-planned ends.

While applauding it for raising these important questions and modern day resonances, Finkle claims that documentary theater is not really “theater.”  As he puts it: “Although billed as plays, these theatrical entries aren’t that. They’re news reports outfitted with theatrical accoutrements. . . ”

What do you think?  Is a documentary play based on real events and transcripts, with actors portraying real people, not really a “play”?  Why or why not?

Finkle notes The Exonerated as another recent documentary “play” in this genre.  Exonerated creators Jessica Blank and Erik Jensen will join Top Secret playwright Geoffrey Cowan and Tectonic Theater Project member and co-creator of The Laramie Project Greg Pierotti for a talkback following the Friday, March 12 performance of Top Secret. Perhaps they can explore this question.

Posted in Documentary Theater, Top Secret Performances | No Comments »

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