Under the First Amendment, the U.S. government cannot legally prevent legitimate journalists from publishing our government’s most closely held secrets. But who is a legitimate journalist?
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The media's Julian Assange problem
Taking national security seriously
By
Jed Babbin -
Monday, July 4, 2022
OPINION:
Under the First Amendment, the
U.S. government cannot legally prevent legitimate journalists from publishing our government’s most closely held secrets. But who is a legitimate journalist? Does the media have any responsibility to protect those secrets?
In 2010, Wikileaks’ Julian Assange, himself a skilled computer hacker, allegedly helped a low-ranking U.S. soldier create a false password to gain access to a classified government internet system. The password enabled the soldier to steal about three-quarters of a million documents, many or most of which were classified at the “secret” level or higher. Mr. Assange then published the documents either online through Wikileaks or in The Guardian, a U.K. newspaper.
The stolen and published documents, many or most of which were classified, included assessments of Guantanamo Bay terrorist inmates and activity reports on the Iraq and Afghanistan wars and State Department “cables,” some of which contained names of sources of intelligence.
A court-martial convicted the soldier, then known as Pvt. Bradley Manning, of espionage and sentenced him to 35 years in prison. (The transgender Chelsea Manning has since had “her” sentence commuted by President Barack Obama.)
Mr. Assange has spent over a decade avoiding extradition to the United States. He was indicted by a federal grand jury in 2018, and a superseding indictment, charging him with espionage, was filed in 2020. On June 17, U.K. Home Minister Priti Patel approved Mr. Assange’s extradition to the U.S., though her order will be appealed to European courts.
Mr. Assange claims he is a journalist and publisher so, his lawyers argue, the First Amendment bars prosecution for his actions. Prosecutors contend he is neither a journalist nor a publisher. In either event, the First Amendment wouldn’t protect him from the charges of assisting Ms. Manning in illegally hacking into the government document system.
If and when Mr. Assange is finally brought to trial in America, the question of whether he’s a journalist will be resolved but another — and vastly more important question — will not.
That question is whether and to what extent the media has any responsibility to protect our nation’s secrets.
The Supreme Court has held that the First Amendment bars the
government from preventing the publication of information under the “no prior restraint” doctrine. In Near v. Minnesota (1931) the court ruled unconstitutional a state law that prohibited the publication of malicious or defamatory materials. In the Pentagon Papers case, New York Times v. the U.S. (1971) the court held that there can be no prior restraint even on the publication of classified information.
In some cases when the media chooses to publish classified information, the damage to national security is obvious. In others, it’s very hard to assess.
In 1998, The Washington Post published a story that said our intelligence community was monitoring Osama bin Laden’s cell phone communications. After the story appeared, bin Laden, to no one’s surprise, quickly stopped using his cell phone. If that story hadn’t been published, it’s possible that we could have prevented the 9/11 attacks.
In 2013, Edward Snowden stole about 1.5 million top-secret documents from the NSA and fled to Moscow. Some have since been published while the rest, like Mr. Snowden, are in Russian hands.
In late 2005, then-President George W. Bush, after The New York Times asked for comment on a soon-to-be-published story, requested a meeting with the publisher of The New York Times and his top editors. He asked them not to publish information on the NSA’s top-secret warrantless wiretapping program used to track terrorists. They refused, and the Times published the story on Jan. 3, 2006.
The media should have an adversarial relationship with the
government, but by failing to accept any responsibility for withholding publication of U.S. state secrets in the interest of national security, the media ignore a duty of citizenship.
Some, including the Times and the Washington Post, have guidelines for publishing secrets, but they are strongly biased in favor of publication. That bias is understandable but wrong. Although publications have no legal duty to protect our secrets, they have the obligation to balance the public’s right to know against the probable national security damage that could be caused by the publication of those secrets.
When reporters, editors and publishers decide whether to publish secret information they know that the
government cannot exercise prior restraint. They may pretend to consider the possible damage to national security but they have no expertise or experience to guide them to intelligent decisions.
Most of the decision-makers in U.S. media claim to be loyal Americans. If they took that claim seriously, they would — before deciding to publish secret material — consult with people who have that experience and expertise and be guided by them in deciding whether to publish that information.
That’s too much to hope for. Most of the media is too awash in politics and hostile to any exercise of American power abroad to take their obligation regarding national security seriously.
The media evidently believe that the
government’s inability to impose prior restraint gives them license to publish anything leakers give them regardless of the consequences to national security. They’re too arrogant to understand that with freedom comes responsibility.
• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and contributing editor for The American Spectator.
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