Bradley Manning is a hero, so say some. Notwithstanding the Freedom of Information Act, does the government have a constitutionally mandated obligation to limit dissemination of certain types of information – namely properly classified national defense information? Intimately linked to that question is the matter of journalists and

Classified information often involves defense information (Source: Greg Cundiff)

their legal and ethical obligations relating to classified information.

In an article posted on the Central Intelligence Agency website, James B. Bruce calls the US press, “an open vault of classified information on US intelligence collection sources and methods.” Part of the problem as Bruce sees it is that, “(n)early all of the compelling evidence in support of the argument that leaks are causing serious damage is available only in the classified domain.”

To illustrate the point about damage done to national security he quotes a former Russian military intelligence officer:

I was amazed—and Moscow was very appreciative—at how many times I found very sensitive information in American newspapers.  In my view, Americans tend to care more about scooping their competition than about national security, which made my job easier.

He faults the anti-espionage law as well as politicians, reporters and publishers for this threat to national security. Only one person has been convicted of leaking classified intelligence, and President Clinton pardoned him. Part of the problem is the legal ambiguity of leaking. The practice of leaking information to make a political point also contributes to the problem. Bruce calls for laws that hold both government personnel and reporters legally liable for leaks.

Legal Precedent

Thus far, there have been no controlling legal precedents that speak to the relationship between the First Amendment and publication of unlawfully gained information. In the conclusion of the report, “Criminal Prohibitions on the Publication of Classified Defense Information,” Jennifer K. Elsea writes, “Although cases involving disclosures of classified information to the press have been rare, it seems clear that courts have regarded such disclosures by government employees to be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger or the value the release of such information might impart to public discourse. The Supreme Court has stated, however, that the question remains open whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment.”

Not the Norm

While Bradley Manning currently and Daniel Ellsberg a generation ago make headlines with their releases of information it does not usually happen that way. In an article for American Journalism Review, “Washington Post Executive Editor Leonard Downie Jr. says national security articles seldom develop the way the public tends to assume: Not since Daniel Ellsberg leaked the Pentagon Papers to the New York Times in 1971 can he recall an instance in which a single person supplied an entire story to a journalist. Instead, a beat reporter such as the Post’s Dana Priest, who won a Pulitzer for her November story exposing the CIA’s secret prison system of “black sites” for hiding and interrogating some al Qaeda captives, “gradually unearths the outlines of a story.”’

Striking a Balance

A free press is guaranteed by the Bill of Rights (Source: Greg Cundiff)

Bruce notes that, “ the inherent tension between First Amendment rights and the government’s interest in protecting national security is dynamic, and may never be solved ‘once and for all.’ But the current balance so favors First Amendment rights that compelling constitutional interests involving national security can be superseded.”

There is little question that protecting the nation is a public good. However, Bradley Manning makes the same claim in an excerpt published by Glen Greenwald on Salon.com, “because it’s public data. . . . it belongs in the public domain -information should be free – it belongs in the public domain – because another state would just take advantage of the information… try and get some edge – if its out in the open . . . it should be a public good”

Natalie Davis, a working journalist puts it this way, “I am absolutely opposed to laws that seek to limit journalists from carrying out their sacred trust. However, if there is a line, it comes only when other’s lives are involved: Will publishing something get someone killed? Will it put undue hardship on INNOCENT people? Personally, that is my line.”

Please join the discussion and let us know where you stand on publishing classified information particularly and freedom of the press generally.