Bill Keller received sound legal advice

The New York Times, like any major news organization, consults legal counsel before publishing material that may land it in court. In the case of the publication of the SWIFT program, the purely legal advice received must have given the OK, and correctly.

The New York Times’ executive editor Bill Keller may be a naïf about national security matters, having no training or background in such matters, and he may be disingenuous about the New York Times’ attitude toward the Bush administration or the GWOT given its unrelenting attacks on the conduct of both, and he may be factually incorrect that no harm is done, as various governments and bodies seem to be now hesitating in participation and our foes are now further alerted to operational methods they can seek to avoid.

But, Keller does seem to understand the law as it applies here.

Further, although Keller may have been counseled that such behavior may lead to either exposure of sources, legal jeopardy to reporters who hide sources, or even to new legislation to punish publication of secrets, these risks would justifiably appear minimal, and even in some respects besides the point to Keller’s judgment.

First, it is clear adjudicated constitutional legal principle that there can be no prior legal restraint on publication. Additionally, there is no clear legal penalty once published.

Second, the United States does not have an Official Secrets Act, like the British. Even the British sometimes have difficulty enforcing that act in their courts. The Congress did pass such a similar law in November 2000, which the following month President Clinton vetoed -- after intense lobbying by the major media organizations -- as too broad in extending to all “properly classified” information whether national security related or other.

Attorney General John Ashcroft concurred in October 2002, responding to Congress’ request for a “comprehensive review,” that at that time there did not need to be a new statute, as other laws were sufficient. Ashcroft reported to Congress that:

Although there may be some benefit from a new comprehensive criminal statute, such a statute standing alone would be insufficient in my view to meet the problem…Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time.

The report continues:

But, he said, “a wide range of administrative measures” should be activated “to significantly improve our capacity to stem the practice of unauthorized disclosure of classified information.”

These notably would include an amended non-disclosure agreement signed by all authorized recipients of classified information that “sets out liquidated damages” in the event of a finding that the person leaked information; and a requirement that a suspected leaker certify under penalty of perjury that he or she had not engaged in a particular unauthorized disclosure.

Ashcroft’s letter to the Congress provides further detail:

Although there is no single statute that provides penalties for all types of unauthorized disclosures of classified information, unauthorized disclosures of classified information fall within the scope of various current statutory prohibitions….

Regardless (emphasis added), the vital need in protecting national security secrets must include rigorous investigation of unauthorized disclosures of classified information to identify the individuals who commit them, and vigorous enforcement of the applicable administrative, civil, and criminal provisions already available.

Ashcroft went on to recommend that all government agencies,

…take aggressive steps…to identify and impose sanctions on those who reveal classified information without authority….

Until those who, without authority, reveal classified information are deterred by the real prospect of productive investigations and strict application of appropriate penalties, they will have no reason to stop their harmful actions.

Nonetheless, Ashcroft recognized that prior efforts had been slight.

Clearly, that only a single non-espionage case of an unauthorized disclosure of classified information has been prosecuted in over 50 years provides compelling justification that fundamental improvements are necessary and we must entertain new approaches to deter, identify, and punish those who engage in the practice of unauthorized disclosures of classified information.

Watergate’s informant, John Dean, wrote in September 2003 he thinks that,

by cobbling together provisions from existing laws, Bush’s Justice Department has effectively created one of the world’s most encompassing, if not draconian, official secrets acts.

Well, it’s now 2006, and John Dean seems to have overestimated the administration’s capabilities or will to find and prosecute and to have underestimated the willingness of government employees to thwart existing security pledges or regulations. Subsequent national security leaks have continued, perhaps increased, and -- with the resignation of one CIA analyst -- enforcement does not seem to have been too effective. The Special Counsel investigation of the Valerie Plame Wilson matter, however, has clarified that reporters must divulge their sources or face personal penalties, but their media organizations continue to act with apparent impunity.

The toothless resolution currently before Congress condemning such leaks seems to reinforce that real impunity.

I wrote on June 25 that,

The furor over the New York Times and other newspapers’ publication of national security secrets disguises a larger problem: the media and government knowingly collude in leaking secret information.

I recommended:

What is required is new legislation that broadens the existing U.S. Code to include all matters of national security, applicable to all present and former government employees and officials, Congressional members and staff, and the media, coupled with confidential prior judicial consideration and enforcement mechanisms, and strict prosecution of those not abiding.

To flesh out a bit, the special national security court established by the Patriot Act may be an appropriate venue for the government to file its concerns about revealing a secret. Then, if and when published, there will be even clearer grounds for subsequent prosecution of reporters and their media organizations. They will have been formally warned. The “he-said, he-said” between Bill Keller and Treasury Secretary Snow will be on-the-record for evidence in prosecution.

Ironically, although in the current Congress and upset at the media it is unlikely to pass, the proposed federal shield law for journalists may offer some insight. It may, also, engage the media in serious self-responsibility for national security, through the inducement of the federal shield law it so eagerly wants.

Former Soliciter General of the U.S., and defender of media, Theodore Olson op-ed’s in today’s Washington Post:

Unfortunately, the rules regarding what reporters must disclose, and under what circumstances, remain a hopelessly muddled mess.

Olson recommends the Free Flow of Information Act of 2006, proposed by Senator Specter, to be considered by the Senate Judiciary Committee. The proposed shield law’s Section 9, according to the analysis by The Reporters Committee for Freedom of the Press, “creates a national security exception.”

The privilege can be overcome when there is clear and convincing evidence that disclosure "(i) is necessary to prevent an act of terrorism or to prevent significant and actual harm to the national security, and (ii) the value of the information that would be disclosed clearly outweighs the harm to the public interest and the free flow of information that would be caused by compelling the disclosure." A second provision in this section related to leaks of classified information allows the privilege to be overcome when "(i) such unauthorized disclosure has seriously damaged the national security, (ii) alternative sources of the information identifying the source have been exhausted, and (iii) the harm caused by the unauthorized disclosure of properly classified Government information clearly outweighs the value to the public of the disclosed information."

Some sort of a national security exception almost certainly must appear in a shield law to gain passage in Congress, and this may be as good as can be expected. Overcoming the privilege clearly would require an examination of the public interests at stake, which is more protection than any federal circuit appears to currently provide. And requiring those issuing subpoenas in leaks investigations to prove serious damage and to have exhausted alternative sources gives reporters more protection than they have now.

As a practical matter, the second and third conditions of Specter's national security exception provide legal, security, time and delay loopholes that would make prosecution extremely unlikely and ineffective. Eliminate these loopholes, and leave the matter at “necessary to prevent an act of terrorism or to prevent significant and actual harm to the national security,” with the adjudication and imposition of penalties against reporter and employer decided by the national security court established by the Patriot Act. Then, there will be a reasonable demonstration of harm and expectation of enforcement.

At the same time such clarification of responsibility and enforcement should lead to greater openness by government, as hollow overclassification would be less easy to defend. I wrote on June 25,

A new paradigm of government-media-public interaction should not stop there, with more secrecy. It must simultaneously entail more openness and transparency by administrations. Justified or excessive paranoia by an administration leads to over-classification. A legislated procedure to both protect and prosecute excessive revealing of legitimate secrets, should encourage more, not less, attributed openness by government officials.

The pressure for public disclosure of government programs and policies will not cease. The government must speak “on the record” more openly about its policies and programs. Sure, critics will harp on this or that matter, but at least the lines of information and responsibility will be clearer to the public.

The time, and seriousness, for government and media to end their tap dance, and stomping each other, around this issue is over.