Throughout history, the level of information security in the U.S. has ebbed and flowed, primarily rising and falling in accordance with the nation’s involvement in military conflicts. Throughout this fluctuation, the press has experienced a constantly changing relationship with the government, ranging from vigilant censorship during the Cold War and WWII, to welcomed transparency after the Pentagon Papers sparked public criticism of the government after the Vietnam War. The interests of the media and the government often collide in situations like the latter, when the press publishes information obtained from unauthorized disclosures of classified information, or leaks. The intelligence community constantly works to deter these unauthorized leaks, but seemingly to no avail, from one look at recent media coverage of the NSA’s intelligence collection activities from the Edward Snowden leaks. The relationship between the government and the press has continued to evolve, but to fully understand its variation and its current state, one must first revisit the historical development of the government’s treatment of the press when it publishes leaks.
It was not until the outbreak of World War I that the need to control information in the press for the protection of national security fully emerged as a public issue. This war was different than those preceding it in the sense that it called for the regulation of all economic and social activities to achieve military victory. In the face of an overwhelming need for national unity, the Espionage Act of 1917 was enacted to prevent wartime dissenters from endangering the nation’s security. The Espionage Act, which continues to serve today as our fundamental law for governing the unwarranted leaking of government secrets, criminalizes the actions of any person who willfully attempts to obstruct the war effort or who induces others to do so (Johnson).
But today the nation faces a much different threat than it did in 1917. In a post-9/11 world, the U.S. has demanded an even greater need for secrecy and withholding intelligence information from the press. According to Director of National Intelligence James Clapper, “the United States no longer faces – as in the Cold War – one dominant threat. Rather, it is the multiplicity and interconnectedness of potential threats – and the actors behind them – that constitute our biggest challenge” (Clapper). Facing this challenge in light of recent leaks to the press has created a more complex and difficult relationship between the government and the media – a relationship that precariously attempts to balance the freedoms of the press with the protection of national security.
Gabriel Schoenfeld, in his book Necessary Secrets, states: “Secrecy, like openness, remains an essential prerequisite of self-governance. To proceed always under the glare of the public would cripple deliberations and render government impotent.”
Schoenfeld’s quote speaks to President Obama’s active pursuit of prosecuting those who are responsible for leaks – a marked shift in the treatment of the press and those who leak intelligence compared to previous presidential administrations. Despite the fact that President Obama has brought more prosecutions against government officials under the Espionage Act for providing information to the media than every previous administration combined (Liptak), his efforts have seemingly been to no avail. Not one has resulted in a successful prosecution under the Espionage Act.
But is this failure because individuals charged with leaking information are innocent, or because policy isn’t on the side of the government. One could argue the latter, as it is extremely difficult to prosecute an individual under the Espionage Act. Gathering enough evidence to prove that an individual leaked information beyond reasonable doubt is difficult enough, coupled with the requirement that the government must also prove that the individual “willfully disclosed” the information with an “intent to harm” (Bruce).
One look at the most recent, high-profile leaks from Julian Assange and Edward Snowden are evidence enough that an increase in cases of prosecution doesn’t always equate to increased security. Julian Assange still remains out of the hands of a court, and Edward Snowden has sought asylum in Russia. And information from both of their leaks continues to be pervasive in media coverage from high-profile publications like The New York Times, The Guardian, and The Washington Post.
So, what will it take for this equation to finally balance out? A change in policy that more closely resembles the British Open Secrets Act – which more strictly regulates what the media can and cannot publish and has a lower burden of proof for prosecution than the Espionage Act – may be extreme, but may be what is required to meet the government’s expectations of information security. However, this is likely an unrealistic expectation to solve the complex issue of balancing the media’s freedom to publish and oversee government activities, and the government’s constitutional power to protect the security of the nation, given the media’s equally important constitutional right to freedom of the press.
Bruce, James. “The Consequences of Permissive Neglect: Laws and Leaks of Classified Intelligence.” Central Intelligence Agency, Center for the Study of Intelligence, Studies in Intelligence 47 (2007). Accessed 21 November 2013.
Johnson, Donald. “Wilson, Burleson, and Censorship in the First World War,” The Journal of Southern History 28 (1962): 46-58. Accessed 20 November 2013.
Schoenfeld, Gabriel. Necessary Secrets: National Security, the Media, and the Rule of Law (New York: W.W. Norton & Company, Inc., 2010), 21.
Liptak, Adam. “A High-Tech War on Leaks,” New York Times, 11 February 2012. Accessed 19 November 2013.
Clapper, James. U.S. Senate Select Committee on Intelligence, Worldwide Threat Assessment of the U.S. Intelligence Community. Statement for the Record, 31 January 2012.