Should We Ever Punish Journalists for Publishing Secret Information?

Free PressLet’s say you break into somebody’s house and steal a TV set.  Then you call a friend and ask if he wants it – for free.  You make him aware of how you got the TV and he says, “Sure, I’ll take it.”  If the authorities find you, you and your friend are both guilty of a crime.  Never mind that he didn’t break into anyone’s house.  He’s still guilty for knowingly accepting the stolen property.

Now let’s go to a different scenario.  Let’s say you work for the United States government and have top-secret clearance. Your agency collects data – phone numbers, e-mails, and who knows what else — on just about everybody who lives in the United States.  It’s being done, you’re told, to catch terrorists.

Let’s say you think the government has gone too far.  You think this is a violation of the United States Constitution. You are enraged because you think the U.S. government is way too nosy and you want the public to know what’s going on in secret.  So you get your hands on the material, transfer it to a flash drive and offer it to a journalist who shares your opinion about the government over-reach.

In this case only the person who pilfered secret material will be prosecuted.  The government has made clear that it will not prosecute journalists for publishing stolen information. Here’s how Attorney General Eric Holder put it to a Senate committee:  “The Department has not prosecuted, and as long as I’m attorney general, will not prosecute any reporter for doing his or her job.”

Let’s get the obvious out of the way:  Burglars don’t have First Amendment protection and journalists do.  So this is not a prelude to an argument about punishing journalists who publish information the government wants to keep secret.

In fact, if the decision were mine, I would not prosecute Glenn Greenwald, the journalist who published the National Security Agency information about “data-mining” — secret information that was leaked to him by Edward Snowden.  Nor would I attempt to punish James Rosen of Fox News who reported secret information about North Korea presumably leaked to him by a federal employee.  And I would not punish the New York Times journalists, either, for publishing secret information that might have helped terrorists during the George W. Bush administration.

I think, as does just about every other journalist, that even if reporters wind up giving the bad guys a heads up about what the U.S. government is doing to catch them, we have to give the press a lot of leeway.  In the long run, we figure, we’ll all be better off if the news media can keep the public informed, even if the government wants to keep us in the dark. Supreme Court Justice Felix Frankfurter put it this way:  ”Freedom of the press is not an end in itself but a means to an end of achieving a free society.”  Dictatorships and other authoritarian regimes, after all, are the ones who jail reporters for exposing government secrets.

But let’s go to one more scenario.  What happens if the next government employee with top-secret clearance learns that the CIA, under orders from the President of the United States, is on the ground, in secret of course, trying to destabilize a country whose government we don’t like?

And what happens if that U.S. government employee thinks this is wrong and wants the world to know?  What happens if he leaks his information to a friendly journalist?

If it gets out that CIA agents are on the ground in this unfriendly country they may very well be killed.  Most responsible journalists, I think, would not publish the information – even if they thought the underlying story was newsworthy.  Most journalists would not put American agents in mortal danger for a scoop.  (I know that some on the hard right think this is naïve.  Let’s just say reasonable people may disagree.)

But in a world of mass information, of a million Web sites and blogs, there’s a good chance that someone would publish the secrets and possibly cause the deaths of those American undercover agents.

So what do we do then?  The leaker, of course, would be prosecuted — but what about the journalist?  Remember, the attorney general said he would not prosecute a journalist “for doing his or her job.”

Okay, I grant you this is not only a hypothetical, but perhaps it’s a wild one at that.  But journalists take it as an attack on nothing less than the Constitution of the United States, motherhood and apple pie, if someone so much as brings up a question about the role of the press in the matter of publishing secret information – except to say freedom of the press guarantees their independence.

So if the next Edward Snowden happens to be the one who leaks secrets about CIA agents we’ll then find out what the American people think about the independence of journalists – and about the limits of the First Amendment.

After all, if the leaker has caused serious harm to our country by single-handedly de-classifying secret information, why aren’t journalists also causing serious harm by disseminating that information?  And if they are, what should the country do about it?

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  • Keith Luxton

    I object to your comment about a few on the hard right. You will always find some idealogue nutcases on the right, on the left, in the air and every where. they are the few you are talking about, not just hard right.

  • Bill

    Prosecute them, they have no right to jeopardize our country or it’s agents. Holder is dead wrong on this. And the president if he would stop leading from behind, should make sure he does prosecute these people or get an attorney general that will. Leaking top secret info is treason and should be treated as such. I someone has a problem with the way gov, is doing something that is classified, there legal way to accomplish this.

    • GailWehling

      Yes, right you are!

  • moronpolitics

    Of course not. They are JOURNALISTS!! That’s like being a doctor or a pilot. RULES don’t apply to JOURNALISTS. Don’t you know nothing, Beto?

    • moronpolitics

      The pathetic thing is that I was kidding, but you were not.

  • Jimmy Cooper

    The biggest problem is that today’s Media has lost all form of ethics!

    • Chip

      Bingo…we have a winner

  • Tim Ned

    I believe Bernie that the intelligence Identities Protection Act is poised to convict a journalist although it has yet to be tested in such a situation. The race today for the “Scoop” is minutes and in today’s communications network it would be next to impossible to evacuate agents or soldiers. I expect that the scenario you describe will probably happen and this act could and perhaps should be used to convict a journalist.

  • Iklwa

    The key word in your discussion is “responsible”.

    In many “journalists’” minds the desire for the Big Scoop, fame and fortune outweighs any sense of propriety, loyalty or patriotism when it comes to matters of national security.

    For all their railing against capitalism and the acquisition of wealth, they are just as interested as the next guy in paying off their home loan or replacing their worn out car.

    If the ethics classes in journalism schools are professored by communists and socialists, it is little wonder that we find a lack of ethics in current journalism…if there ever were such things.

    My brief studies of journalism in America reveals a long and storied past of slander, innuendo, muck raking, character assassination, propaganda and outright lies.

    In some circles this would be considered “upholding a fine tradition”.

    I think we are witnessing just that.

  • Kitcrsn

    The Zimmerman trial is your perfect example of slimey journalists run-amuck.

  • FloridaJim

    When you work for anyone you should follow the rules. If the rule is not steal information and publicize it without the approval of the employer that is what you do. If you don’t like the rule quit or try to get it changed. If more people followed the rules we would be a lot better off.

    • brent kaufman

      … and there would be no whistleblowers, no one to reveal corporate or government corruption, no more journalism like that of Watergate… Breaking rules is sometimes a necessary evil when those in charge don’t follow rules but demand it of their underlings.

  • EddieD_Boston

    These idiot journalists want to become the story for self-aggrandizement and resumé building. I have zero sympathy for them when important intelligence is leaked. However, the government source who gave the secret to the journalist should be given prison time, and plenty of it too. This stuff isn’t a joke and innocent people’s lives are at stake. Liberals (99.99% of journalists) don’t take the threat of Islamo-fascism seriously. They’re too clueless to get it and don’t realize the damage they’re doing. Or don’t care because it’s all about them.

  • fraudcop

    I remember a number of years ago, a well known newspaper/tv reporter who had just retired was being interviewed about his career and was asked about releasing sensitive or classified information. He said that the public has a right to know and that trumped everything else. The interviewer asked him if he had inside information about Operation Overlord, the plans to invade France on D-Day, what would he do with that. He said he would report it. The interviewer said that his information if released would cause the deaths of many allied soldiers. He said that he was unconcerned about that, as the information he had would be a great scoop and that the public’s right to know was the deciding factor. Apparantly the right to know included the enemy in this reporters mind.

  • http://www.facebook.com/people/Jim-Walters/100003306925750 Jim Walters

    And the irony in this all (not that I disagree with the arguments to protect journalists from pprosecution) is that the same overall collective guild of news journalists is willing to proslletise for the elmination of another Constitutionally based right.
    Either you are in for the Constitution as it stands or you are agin it – no splitting hairs and trading off. It is a matched set.

  • Shane

    The NY Slimes shoud have been prosecuted for publishing the info that the US had the technology to intercept the enemies satellite phone transmissions.

  • ronk1957

    Now
    let’s go to a different scenario. Let’s say you work for the United
    States government and have top-secret clearance . You find out that the government plans to ignore the constitution and make laws by presidential decree and have secret NSA courts for any that oppose them. Do you tell the people of this ? In the U.S. aren’t the “government ” and the “citizens” suppose to be one ? Aren’t the people we elect suppose to represent the citizens and protect our rights ? There are already lots of third world countries that suspend the rights of their citizens for “their own good”. If it were you Bernie , would you tell ?

    • az33

      Agreed, but I believe you need to tweak your scenario a bit. First, you say the government is about to “make laws…” OK, that makes it legal, and you can’t have a “secret law.”

      I would simply say, “What if you knew the government was IN FACT breaking the law and you knew it?” The Bill of Rights gives us all protection against search and seizure, this data-mining is a violation of that right, THEY KNEW IT, and then they LIED about it. When asked if citizens’ private information was being collected, Clapper said “Not wittingly.” HUH? Bull. He knew it was bull, because afterward he said he tried to give (and follow THIS pretzel logic!) “the most least untruthful statement” (c’mon bro, just say it! He said he was trying to give the smallest lie he could).

      On a side note, WHERE IS THE ACLU on all this? If this were a Republican administration….. well, you know….

      • ronk1957

        “OK, that makes it legal,” Only legal until they are found to be unconstitutional when challenged. Other than that I agree with you. The only problem is by the time these so called laws can be challenged it’s 10 years later after the damage is done. He could make a presidential decree today that anyone charged with a crime will not be entitled to a lawyer and he would be out of office when it came before the court. Look at Eric Holder . He could care less about lawsuits subpoenas etc. He will be gone before any decision. As far as the ACLU , they are more worried about how to get a court decision to allow males to shower in the girls locker room than the constitution.

  • knowledgeisgood

    Our Government should never have to spy on our citizens. By spying on us, The Government is saying, we believe all of you are Guilty, so prove to us, your not. Not just that, but the President didn’t let us vet him, why? Because He has something to HIDE, he know’s that he is hiding many issues in his life that if, the American citizen knew what he has done, the Lie’s he said to become in order to become President, there is no other reason why he is scared to let the citizens know. And, what about the the old day’s, how did NSA, the FBI, and every other Government spy agency, How did they get that personal info of the people they are looking for? I’ll tell you how, they got off their a$$ and hit the streets, contacted those who live on the streets, and see, and hear what is going on around the streets, that is how they did it. They relied upon their outside contacts, or oversea’s contact, it was none of this BS of going into the personal info of every American Living, that is just wrong, and Lazy. Get off your Lazy a$$ and go get the info you are looking for, like your predecessors. J edgar Hoover did it the old way, and so can today’s Inspectors.

  • Charlie

    I’m sorry but I believe I would disagree with Bernie’s point a bit. Unfriendly country or no, those hypothetical CIA agents know that what they are about to do will likely cause death and destruction. So in this modern world, where does it become OK for people who are not Americans to die because of our actions and not so OK for an American doing something bad to be killed because somebody ratted them out before they could do this evil deed. If we are in a declared war, maybe I see things differently. But if our government makes a decision to attack another government because we don’t get along, well, just remember there was a 9/11 before 2001 and for those who can’t remember it, can you say “Allende”?

    • az33

      Agreed. Besides, “Allende” can you say FAST N’ FURIOUS? An illegal operation, INTENTIONALLY PROVIDING *ASSAULT RIFLES* to drug cartel criminals and murderers. We hear about Brian Terry, our border agent that was tragically killed. What we DON’T hear about is the probable hundreds of Mexican citizens that have ALSO been killed with the weapons OUR GOVERNMENT INTENTIONALLY (illegally!) GAVE TO THE BAD GUYS!

      And to throw another twist… Our very same government is actively trying to remove/infringe on the rights of U.S. citizens to own assault rifles. Isn’t it interesting? “No, YOU guys can’t have them….. but we’re gonna sell them to illegal drug cartels whom we know will use them to murder others.” In the ‘War On Drugs’ we just provided arms to the enemy. Isn’t that sedition? Hello? Anyone home? Bueller?

      • brent kaufman

        In the end it matters not what anyone here says. All that matters is that Eric Holder is in charge of these things, and as we’ve seen, first in the Philadelphia Black Panthers election intimidation scandal that whistle blowers showed was swept under the rug (by Holder), then in Fast n Furious which Obama swept under the rug by Exec Order, nothing will happen to law breakers in this administration. It just won’t.

        • az33

          Couldn’t agree more. A terrible precedent is being set for future administrations.

  • Ed I

    I knew of a different scenario. In this one a reporter knew before hand that a crime was to be committed, one that would most probably get people killed. The reporter told no one since in their mind they were “protecting their source.” After the crime was committed, and several people died and were injured, the reporter wrote piece for the newspaper. They won a national award. They were hired by a national daily. Of course there would have been no story of the reporter had called authorities or in this day and age, sent them an email. The reporter was quite proud of themselves. It is sort of the same ethics as a lawyer finding someone that has misused a product, was injured and then sued the company until they were out of business, displacing forty to fifty long time employees.

  • chrismalllory

    The American government should not be spying on American for any reason. There should be no phone taps of Americans for any reason. No “know your customer” bank laws. None of it. We need to drastically reduce the size and power of government.

  • chrismalllory

    In a free society there should be no such thing as “secret information”. If the government action cannot be done in the open, then it should not be done.

    • Drew Page

      I disagree. I don’t think we should be publishing information about our defense systems, or the technology that gives the U.Ss. an edge over our enemies. I don’ think we should be publishing how we defeat hacking attempts into our financial or defense systems, giving those who try to disrupt and destroy our means of defense in these areas. I don’t think we should make public our strategies for stopping terrorist attacks. Not everything should be made public.

  • Ed in Albany

    I agree with Sheila. The publisher – owner of a media outlet is fully responsible for the discretion of his editors. If they are ignorant enough to permit information that jeopardizes a human life to be broadcast, then they should be liable for civil penalties, or criminal if traitorous. The guys making the big bucks have to pay more attention to the work their idiots are doing.

  • beniyyar

    Sure some journalists are irresponsible, negligent, and anti American. They will do anything and everything to damage their own country, endanger their own people, even themselves, and empower really evil people. But the vast majority of journalists are decent, moral, and responsible people quite capable of telling the difference between reporting secret information which could be dangerous and that which is necessary for the good of the nation. Any law which limits any journalist perforce limits ALL journalists and that would be a terrible mistake.

  • sheila0405

    The fault lies with Snowden. He could have contacted his representative in Congress. If he got nowhere with his own congressman, then he could approach the Senate Intelligence Committee, or other such committee in Congress. I believe he betrayed our nation. It would have been so much better for him to go through channels and become a protected whistleblower. Then the public would benefit from his information because he would testify about it to Congress. Reporters are supposed to let us know when the government oversteps its boundaries. But a whistleblower should contact Congress before going to the press. I don’t fault the reporter. If a reporter reveals personal details about CIA operatives, then that is a different story. If one of them should die due to the reporter’s story, the reporter should face consequences. But that’s why reporters have editors. The editors and publishers of the media need to oversee what their employees are doing. This way there are checks and balances in place.

    • chrismalllory

      So, if your neighbor is peeking in your window and the milkman warns you about it, it is the milkman who has harmed you.

      Gotcha.

      The American people have every right to know what our EMPLOYEES in government are doing. They work for us. The employee does not keep secrets from the employer nor does the employee spy on the employer.

      • Drew Page

        Wrong. I don’t want or need to know the systems the government has put in place to keep terrorists from committing more acts of terror, I don’t need to know how we protect our financial systems and defense systems from foreign hackers that could cause chaos here. I don’t need to know how our satellites are tasked to gather military intelligence. If I know, then others will know and our enemies will know how to defeat those protections.

        • brent kaufman

          RIght, we may not need to know what you just listed, but we do need to know when our personal writings are being confiscated and inspected. That goes beyond simply what the gov is doing to prevent terrorism. And besides, the 4th amendment requires a warrant that is specific to what it is looking for, not an general collection of all material just in case, maybe, perhaps, on the outside chance that it is necessary to read it, without a warrant.

          • Drew Page

            I agree completely. I believe absolutely in due process and probable cause.

    • Stephanie S

      Big chuckle, sheila0405. I’m sure if you could talk to Andrew Breitbart and Michael Hastings they would agree that going to a Congress critter or the Senate Intelligence Committee would be a totally safe option for a whistleblower. Your rosy-cheeked ingenuous is at least somewhat refreshing.

      • sheila0405

        Glad I could give you that chuckle.

  • kayakbob

    Well, a lot of it would depend on exactly what kind of TV set it was.

    Ok, seriously. I tend to hold the leaker more responsible than the “journalist” in most cases. Unless it it proved that the …”journalist” encouraged, coerced, threatened(?) or otherwise set up a situation to get the leak that the leaker would not have taken otherwise, I still hold the leaker more responsible than the “journalist” (as conduit to the public). I put journalist in quotes because journalist used to be educated in journalism and abide by a standard of ethics. Now the term “journalist” usually refers to media arm of ___ Democrat official/congressman/President/dogcatcher.

    But whatever the percentage of responsibility is between leaker and journalist, it must be the same regardless of which political party holds the White House and government, in general. From Jan. 2001 to Jan. 2008, a leaker was a hero speaking truth to power. Since Jan.2009, a leaker is a criminal – regardless of what kind of TV set he has.

  • TheGoodDoctor

    I am confident that we should, by the same reasoning {“In the long run, we figure, we’ll all be better off if the news media can keep the public informed, even if the government wants to keep us in the dark.”} , then, award full consideration of the Second Amendment of the United States. Just as there may be neglect and abuses of the First Amendment by pornographers and others of which we must be tolerant to save and defend the principle of our Free Press, so too must we be tolerant of neglect and abuses as might occur from other protections of the Bill of Rights and other amendments. E.g., Let us now promptly get the federal government entirely out of all activities that impinge upon Second Amendment guarantees (simultaneously doing likewise in the states whenever efforts at that level would or do of fact impinge upon the Second Amendment), and eradicate all such laws from the federal and state codes).

    We can and must return to an original reading, understanding, and educational effort when it comes to the Constitution of the United States and Bill of Rights, preceded of course by education of the public in the Declaration of Independence. Far too many of our people today fail to understand, much less to comprehend, the history of their documents and the historically pertinent reasons why they were drafted as they were. Without such critical understanding citizens are only too easily directed toward titillations and led to a poverty of morals and ethics that inevitably would reduce them to servitude.

    That is the lesson taught by faith, by history, by the writings of the Founding Fathers, and by the rapid march toward a prevalence of the worse human behaviors on the streets of our communities. Liberty does not mean license but imposes a requirement of personal responsibility. That is what made our nation great in the past, the only pathway toward restoring that greatness in the present, and the sole means of ensuring such greatness in the future.

  • JohnInMA

    To me, the situation with Greenwald might be slightly less innocent given the way some are assembling the scarce facts available so far. If, in fact, Snowden had contact with Greenwald in advance of taking the Booz Allen job, and Greenwald had some influence on the final actions (aiding or encouraging the removal of the materials), perhaps Greenwald has some other type of culpability. So far what Greenwald and his paper has allowed to be published seems to be a fair First Amendment action, though.

    • nickshaw

      My thinking too.

      What happens when one applies for a job for the express purpose of subverting secrecy with a willing “journalist” accomplice.
      How about if a person publishes his findings himself, on the internet.
      Will he still be allowed the freedoms of a journalist?

      • JohnInMA

        My thoughts are simply that it hasn’t been proven if (or if not) Greenwald helped or encouraged Snowden in building his strategy. Being an accomplice is a lot different from basically telling your ‘source’ to provide data once it is available but NOT scheming beyond that. Given how conspiracies go, even if Snowden ends up in the hands of the U.S. government, putting the finger on Greenwald surely will drive some (many?) to cry coercion and lies. After all, the DoJ wasn’t at all reticent to accuse James Rosen of high crimes in a court. So, for some it won’t require much effort to extrapolate that to some scenario where Snowden is coerced to do something similar against the reporter in some “unknown” deal making. (deliberate ambiguity in my words)

  • Brhurdle

    I think Mr. Goldberg presents a false argument. The consequences of releasing the information has never been a condition of immunity. My personal opinion is that information is no different than property and knowingly receiving illegal information is a crime. I understand the importance of “whistle blowing”, but feel there should be a formal mechanism established to accomplish this task rather the relying on the opinion of one person. I have no doubt that secrecy is used as a method to circumvent laws, but the present structure lets every person make that judgement.

  • rbblum

    And, exactly how would the journalist have obtained such ‘secret’ information?

    • DonaldYoungsRevenge

      It would be very easy, all the work has been done by law enforcement officials who have nearly 100 years of combined law enforcement experience collecting and evaluating evidence. They have been conducting an investigation for nearly two years now. The journalist wouldn’t have to do a damn thing other than take time to sit down and allow the investigators to explain what they have found. I know the journalist and anyone else would be utterly shocked with what they have discovered. There really is no excuse other than their reporting could bring the power of a corrupt government upon them and their families. No big deal, our brave men and women in the military put their lives on the line every day for their country, shouldn’t a patriotic journalist feel obligated to do the same. Who said their career choice would be a picnic.

  • Wheels55

    I think the burden falls on the journalist to decide if the country is better off with the leaked information being published. That is largely based on opinion, but I think it is a fair statement. To publish some top secret info just because you have it makes no sense to me except to push the journalist to a new career level (which is selfish).

  • DonaldYoungsRevenge

    Here are a couple of questions concerning journalists. What if there were journalist who had information that would prove a politician in high places attained that position by using fraudulent documents and that there was ample evidence available to prove it and they remained silent? What if those journalist didn’t have to worry about disclosing their sources since the sources were willing to stand rigth along side of them as they presented the evidence to a TV audience or in a number of columns and still did nothing? What if the person who used fraudulent documents has access to nearly all of the Amerian intelligence and could use it to harm our economy and our national security and they still remained silent? What would you think of a person or persons like this? There is one journalist who has stated that she has enough information to declare that “this is the biggest fraud ever committed against; the United States” (Diana West).

  • G. Daylan

    Another scenario that you might consider is the case when a “leaker” or a reporter knows that a government agency has committed (or plans to commit) an action that can be considered to be a “crime against humanity.” At Nuremburg and again in Serbia, the world established that allowing the commission of such an action cannot be excused by the “I was just following orders” defense. This grey area would pose no problem for one who has a General Clapper attitude but could put someone of a different stripe into a crisis of conscience.

  • Brian Fr Langley

    Freedom of the press is alot like other constitutional freedoms, in that they often come at significant cost. As an example, gun control advocates rightly point out, gun control will save lives. Yet for most constitutionalists, an armed population is a linch pin of liberty. (an armed populace being a significant deterent to tyranny). Freedom of the press is simply a cost like many others, that hard won democratic republics, need to bear in order to remain, hard won democratic republics.

  • Robert Strong

    A journalist should only be punished for publishing secret material if he or she has signed an agreement not to disclose such secrets.