Chinese Allow Play on Pentagon Papers, but Not a Talk About It
The New York Times
December 2, 2011

Pentagon Papers still causing controversy 40 years on (in China)
Los Angeles Times
December 3, 2011

The Pentagon Papers, the Press, and Beijing
New Yorker
December 9, 2011

In Beijing, you just can’t chat about things “Top Secret”
Shanghai Scrap, Bloomberg
December 3, 2011

American Play Center on Free Speech Tours China
Voice of America News
December 5, 2011

STL Students Attended a Performance of “Top Secret”
Peking University School of Transnational Law
November 30, 2011

PKU cancels talk after free speech play
Global Times
December 4, 2011

Le pari (in)sense d’une troupe de theatre americaine en Chine
Le Monde
December 9, 2011

This China production of Top Secret was directed by award-winning director Stephen Sachs. The cast included well known actors from stage, screen, and television including Henry Clarke, JD Cullum, James Gleason, Nicholas Hormann, Amy Pietz, Russell Soder, Josh Stamberg, Peter Van Norden, Steve Vinovich and Tom Virtue.

In conjunction with performances, CCLP presented post-performance discussions with Cowan and other special guests in partnership with China’s leading law and journalism schools. This provided a valuable opportunity to contextualize the content of the play, which is authentically American, within Chinese society.

In addition to the performances and discussions, Cowan delivered the prestigious F.Y. Chang lecture, a joint program of Peking University Law School, Tsinghua University Law School and the Harvard University Law School East Asian Legal Studies Program.

Links to coverage:
Voice of America
New York Times
Los Angeles Times

Tour Details

November 21 – 26, 2011 / Shanghai
Seven performances in the Shanghai Dramatic Arts Center’s Annual International Contemporary Theatre Festival
Panel discussions with Cowan and NYU Shanghai public interest law professors and Fudan University School of Journalism.
One performance at the Peking University (PKU) School of Transnational Law as part of the celebrations in honor of PKU Shenzhen’s 10th Anniversary;
Panel discussions, lectures, and workshops with bilingual law students, law professors, and local community led by law school Dean Jeffrey Lehman and Cowan.

November 29 – 30, 2011 / Guangzhou
Two performances at Sun Yat-Sen University
Panel discussions with Cowan about the role of journalists and journalism in society

December 1 – 5, 2011 / Beijing
Four performances at the Beijing Municipal Bureau of Culture’s Annual International Theater and Dance Festival
Panel discussions and lectures at the Comparative Law Program at Renmin University of China Law School; Peking University; Tsinghua University
Panel discussions with the American Bar Association.

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.

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.

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!

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.

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.

Thanks to Cputer for the heads up!