The Briefing

The Need for a Press Shield Law

Wednesday, January 29, 2014

A.

The emergence of market states will have a profound effect on the conduct of warfare and the maintenance of defense establishments.  The general trend away from conscription and toward all-volunteer forces, the priority given to force protection that has accelerated the deployment of armed drones and impeded successful humanitarian interventions, the outsourcing to private firms of diplomatic security, logistics and many other traditional military functions, all reflect this development.  But so too does a much less noticed consequence of the move to market states, the vast increase in the power of private actors — corporations, profit and non-profit, NGOs and even individuals.  "They are becoming," Gregory Treverton wrote, "in ways hardly realized let alone charted, not the objects of the international order but its subjects, its architects.  They are becoming the setters of international norms, not free riders on rules set by states."[1]

In such a situation, it would hardly be surprising that intelligence operations will also be profoundly affected.  We should expect greater outsourcing of intelligence collection and analysis — NSA's reliance on private sector servers is one example on the collection account — and we might also expect private corporations to increasingly undertake intelligence operations — spying — on their own behalf or that of their clients, just as FedEx and UPS have steadily bankrupted the less nimble and less efficient US Postal Service.

When the media or its allies in the legal community undertake to collect against the US government, for profit and for ideological reasons, is this espionage?

Let's begin with the closest case, not with The News of the World hacking into police cell phones, but with the government person who claims to be a whistleblower.  If he steals government property or secret information when there are other statutory and regulatory channels available to him that will expose government wrongdoing, does he forfeit the mantle of the whistleblower?  It's no good to say that his motives may be pure; the Cambridge Five had the purest of motives.  Nor does it exculpate the illicit collector that he is not working for an enemy government, or even that his actions will not benefit the foreign adversaries of the US government; it is enough to qualify him as a spy that his activities are not restricted by service to US interests as these are defined by our democratic methods.  That he is collecting for an American ally, for example, is sufficient to make him a spy.

Despite the general outrage at the Department of Justice's suggestion that a Fox News reporter had conspired with a State Department employee to violate 18 US Code § 793 (which makes the unauthorized disclosure of national defense information a crime), it is not hard to see how Justice came to this conclusion (a conclusion endorsed by the federal judge who signed off on the search warrant of the reporter's logs precisely on the finding of probable cause that the reporter had indeed committed a crime.)   Emails from the reporter set up a system of aliases for himself and the employee; devised a system of coded communications to arrange clandestine meetings; specifically solicited US intelligence on North Korea that the reporter specified was highly classified; and the reporter published the results.  His goal, he said in one email to the employee — who later claimed he had been suborned by appeals to his vanity and the hope of a position at a think tank — was to push American policy in the direction the reporter thought advisable.

The firestorm of reaction to these disclosures did not come from an inflamed public, whose interest in the US's preserving secret sources of information inside the North Korean government about its nuclear plans is hardly negligible, but from the news media.  The president publicly apologized for the government's temerity in seeking the warrant, though with the number of persons privy to the secret information it is hard to see how DOJ could have gotten an indictment otherwise.

Part of the outrage, it was claimed, was the "double standard" by which presidents and their advisers are allowed to brief reporters on secret information while low-level sources are prosecuted.  As Conor Friedersdorf put it in the Atlantic,

The willingness of the government to punish leakers is inversely proportional to the leakers' rank and status,…Leaks of classified information in the United States will remain common… because they frequently serve the interests of people in power — and they won't be prosecuted precisely because they are powerful or connected.

It doesn't seem to have occurred to the author that the reason they won't be prosecuted is that the president and his designees have the authority to declassify secret materials; that informing the public is part of what they — but not illicit sources — are elected and appointed by those elected to do.[2]

Where a federal statute grants power to an executive agency to classify documents generated by that agency, Article II of the US Constitution[3] and Supreme Court case law such as Myers v. United States[4] make it clear that the president — or those members of the executive whom he directs to do so — may command the actions of that agency with respect to its statutory responsibilities.  Should a statute provide that an official who did not create but who works within an executive agency that classified a document may de-classify that document — or that a document once classified can only be de-classified with the consent of the agency that originally classified it — it is clearly the case that the president has the unquestioned authority to direct the officials of that agency to declassify that document and it follows therefore that he may do so himself or direct his subordinates to do so on his behalf.

But before I am accused of participating in what has been called by some journalists the "war on the press," let me note that I simply think it is obvious that 18 USC 793 is being widely violated, and that it should be amended, or at least a proper shield law for journalists should be enacted, rather than the absurd pretense maintained that the media gets, on its own recognition, a free pass from obeying the letter of the criminal law.

B.

We might want to keep in mind these developments about the evolution of the state when we ponder the proposals last week by the editors of the New York Times and the Guardian that call for clemency or pardon for Edward Snowden.  In the parlance of intelligence collection, Snowden was a "walk-in" for these organizations and a very successful one for their earnings and stature.  Naturally it is important for them to protect such people, if only to keep future walk-ins possible.  Perhaps it may well be important for us as a nation, too, but that case has to be made on some other grounds than that the media think, on reflection, it is important.  Protecting your secret agents from prosecution from what are admittedly crimes is more typical of tradecraft than it is of politics in a democracy, or at least we think it should be.

We shall want to ask ourselves why the US public would want to make its government's diplomacy and national security decision making so much harder.  There may be very good reasons for this but before the calculus can be drawn someone — perhaps the president — will have to explain to the public precisely how national security decisions are made, how diplomacy is conducted, how disclosing an intelligence agency's capabilities is about the most damaging step that can be taken, and how the power to influence the behavior of other states so often depends on sharing information they do not have and we do and just how much harder this very difficult part of governing is becoming.  It is this explanation — and not claims that a certain number of plots have been foiled or prosecutions assisted — that must be made and has been so wholly lacking.

C.

For make no mistake, the radically increased transparency of life will ensnare us all some day.  The government is the easiest target but its national security information is not the most vulnerable.  As Eric Posner observed, the government is a vast depository of information; it has

your financial records (on file with the IRS)… your medical records (on file with Medicare or Medicaid) — and thousands of government employees can access those records, whereas only 22 NSA employees can access the metadata….[5]

Moreover, the time will come when the media itself is "Snowdenized" by a disgruntled IT employee who discloses the sources hitherto protected by editors and writers. Corporations will be Snowdenized when the credit card information on which they rely, and which they undertake to keep secret, is publicly exposed (or sold).  Private persons will be Snowdenized by neighbors who consider themselves whistleblowers (did you smoke a cigarette in the presence of children? did you actually suggest that your wife sleep on the floor to help her backache? did you really say you can't stand the Girl Scouts' soliciting for cookie sales?)

Return to the Briefing daily for new insights from Peter BerkowitzBenjamin WittesJack GoldsmithMatthew WaxmanJessica SternShavit MatiasTod LindberghRuth Wedgwood, and Kenneth Anderson focusing on intelligence gathering in a digital age.

 


[1] Gregory F. Treverton, "Intelligence and the 'Market State'," available at https://www.cia.gov/library/center-for-the-study-of-intelligence/kent-csi/vol44no2/pdf/v44i2a04p.pdf.

[2] David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512 (2013).

[3] “The executive power shall be vested in a President of the United States of America.” Art. II, Sec. 1, Clause 1.

[4] Myers v. United States, 272 US 52 (1926).