How the government gained the upper hand against leakers

In October 1969, a national security official named Daniel Ellsberg began secretly photocopying 7,000 classified Vietnam War documents. He had become increasingly frustrated with the systematic deception of top U.S. leaders who sought to publicly escalate a war that, privately, they knew was unwinnable.

In March 1971 he leaked the documents — what would became known as the Pentagon Papers – to a New York Times reporter. The newspaper ended up publishing a series of articles that exposed tactical and policy missteps by three administrations on a range of subjects, from covert operations to confusion over troop deployments.

In the decades since, the Pentagon Papers helped shape legal and ethical standards for journalistic truth-telling on matters of top secret government affairs in the United States. Openness, in the eyes of the public and the courts, would usually prevail over government secrecy. In this sense, the transparency that came from the papers’ release shifted power from politicians back to citizens and news organizations.

That balance of power is taking on a renewed significance today. In the wake of Reality Winner’s alleged recent national security leak, prosecution of members of the press over the past few years as well as pointed anti-press and anti-leak rhetoric by the Trump administration, one must ask: Are we witnessing a swing back toward strengthened government control of information?

Political lies exposed

The Pentagon Papers helped Americans realize that government officials didn’t have qualms lying about policy. Perhaps more importantly, it showed them that the news media could act as a key conduit between the country’s most powerful political elites and a public they meant to keep in the dark.

“They made people understand that presidents lie all the time, not just occasionally, but all the time. Not everything they say is a lie, but anything they say could be a lie,” Ellsberg later said.

The New York Times began publishing the Pentagon Papers in June 1971. Citing national security concerns, the Nixon administration sought to stop publication of the papers. The case went all the way to the U.S. Supreme Court, where, in a landmark 6-3 ruling, The New York Times and The Washington Post won the right to continue publishing information contained in the documents.

An unspoken bargain

From the Pentagon Papers until the Obama administration, there was “an unspoken bargain of mutual restraint” between the press and the government, according to legal scholars David McCraw and Stephen Gikow. The press would occasionally publish classified information, and the executive branches would treat those leaks as a normal part of politics. Veteran investigative reporter Dana Priest described such a relationship as giving reporters “a greater responsibility to be thoughtful about what it publishes and to give government the chance to make its case.”

But since 2009, the federal government has grown increasingly hostile toward leakers and news organizations that have published classified information. As The New York Times noted in its coverage of Reality Winner, President Trump, “like his predecessor Barack Obama, has signaled a willingness to pursue and prosecute government leakers.”

During Obama’s tenure, his administration prosecuted more leaks than every prior administration combined. He also continued to pursue high-profile cases against reporters who published stories using classified information. James Risen, a veteran national security reporter at The New York Times and target of such a case, called the Obama administration “the greatest enemy of press freedom in a generation.”

Tensions mount

So what happened? How did this “unspoken bargain” fall apart?

Technology has certainly created more tension between the government and media outlets. Government employees and contractors can electronically access and release information to websites like WikiLeaks, which, in turn, can instantly publicize tens of thousands of pages of classified records.

Mainstream news organizations are also experimenting with new ways for leakers to submit classified information. The Tow Center for Digital Journalism at the Columbia University Graduate School of Journalism created a guide for news organizations using SecureDrop, described as an “inhouse system for news organizations to securely communicate with anonymous sources and receive documents over the internet.” ProPublica offers information on its website about how to leak “to hold people and institutions accountable.”

In a sense, this is part of a continuing battle between the seemingly incompatible traditions of a free press and a national security apparatus that benefits from secrecy.

Government transparency is a necessary ingredient for a democracy. To elect leaders, citizens at the local, state and federal level need to have as much access to accurate information about policy and policymakers as possible. On the other hand, when it comes to national security, complete transparency could mean compromising information that

puts lives at risks.

However, according to University of Minnesota law professor Heidi Kitrosser, the threats that leaks pose to national security are often exaggerated by a political system that benefits from a public that’s kept in the dark about its leaders’ actions. Kitrosser wrote that in one warrant filed during the Obama administration, a member of the press was labeled as “an alleged leaker’s criminal co-conspirator.”

A wary public

Meanwhile, even though it’s become easier to leak information — and for news outlets to expose government corruption and misdeeds — the public has become increasingly wary about leaks.

A 2007 Pew Research Center report found nearly 60 percent of Americans felt the U.S. government criticized news stories about national security because it had something to hide. That same study showed 42 percent of Americans thought leaks harmed the public interest. By 2013, 55 percent of Americans believed Edward Snowden’s leaks about National Security Agency surveillance programs did more harm than good.

Such a dramatic change in public opinion raises questions about whether the public today will even defend the media’s right to access and publish leaked information.

It certainly hasn’t helped that, during the first year of the Trump administration, the press has been attacked ad nauseam. The president routinely calls news organizations “fake news” and threatens increased prosecution of leaks.

The rhetoric comes at a time when the public has expressed a growing disdain for journalism. A September 2016 Gallup poll revealed Americans’ trust in the news media to “report the news fully, accurately and fairly” dropped to its lowest level since the group began asking the question in 1972.

Leaking and the law

Public opinion on this issue matters because there are flimsy legal protections for journalists and leakers. And if politicians realize they can go after journalists without facing a backlash at the voting booth, they could become emboldened.

Because of Reality Winner’s leak, there are new questions about how much Russia interfered with the 2016 election. The Intercept, which published the document, called it “the most detailed U.S. government account of Russian interference in the election that has yet come to light.”

Nonetheless, Winner now faces 10 years in prison. There hasn’t been any legal action against the Intercept, perhaps because the government was able to track down Winner on its own.

Meanwhile, there’s no federal shield law — also known as reporter’s privilege — for journalists. Such a law would give journalists the legal right to protect the identities of confidential sources. However, 49 states and the District of Columbia offer some variation on reporter’s privilege through either case law or statute.

In 2009, a federal shield law to protect journalists from testifying against their sources made its way onto the agenda. With bipartisan support and a Democratic Congress, Obama said he would refuse to sign the bill if it didn’t include a significant exemption for national security. The bill went nowhere.

In 2008, law professor RonNell Andersen Jones studied 761 news organizations and found that reporters or editors in 2006 received 3,062 subpoenas “seeking information or material relating to newsgathering” — a number that, Andersen argued, justified federal legislation to protect them. Without firm legal protections, journalists face a lengthy — and potentially expensive — fight to fend off the government.

As journalism observers and researchers like me study how leaks, prosecutions and anti-media rhetoric impact everything from media trust to the free flow of information, we may be entering a post-Pentagon Papers era that shifts the power back to political elites, who seem more emboldened to go after leakers.

That’s not good for the average citizen. Ellsberg knew it in 1969. We should pay more attention now, too.