Classifying the Public’s Interest

(L to R) Professor Steve Vladeck, Charles D. Tobin, Lee Williams, David T.S. Fraser

By Rob Boisseau
Aug. 8, 2011
Sen. Jay Rockefeller (D-WV) was the chairman of the Senate Intelligence Committee, but when he received startling information that the National Security Agency was spying on American citizens-an action that prompted Congress to subsequently provide retroactive immunity to telecom companies that aided NSA-he felt powerless to make that information known.

By contrast, when the Pentagon Papers were made public by Daniel Ellsberg, Sen. Mike Gravel entered 4,100 pages of the top-secret papers into the public record.  Rockefeller did not even feel comfortable briefing members of his staff who held security clearances.
Government secrecy, the media and the impact of WikiLeaks were discussed by legal experts at the American Bar Association’s Annual Meeting held this year in Toronto.

The release of volumes of sensitive information by the transparency organization WikiLeaks and the subsequent reaction by the U.S. government raise serious questions about how settled the jurisprudence is as it relates to media release of information that was never intended to see the light of day.  At the same time, the Obama administration’s unprecedented crackdown on government employees who leak information is raising concerns about what avenues whistleblowers have to serve the public interest.

The United States is preparing to put Bradley Manning on trial for allegedly providing material to WikiLeaks, including video of a 2007 Iraq air strike that killed multiple unarmed civilians, including two Reuters reporters.  Manning may face the death penalty.
Julian Assange, the editor-in-chief of WikiLeaks, is also thought to be the target of an investigation that may hinge on the applicability of the Espionage Act, adopted in 1917.

Steve Vladeck, who teaches at the American University Washington College of Law, explained that the Espionage Act prohibits even the possession of sensitive national security information.  Vladeck described the Espionage Act as “not a very modern statute,” since it has only been “updated materially once in 94 years since [it was adopted].”

The language of the Espionage Act is very broad and although it, as Vladeck noted, “has virtually never been applied to third parties,” it could in theory apply to American New York Times readers or even foreign nationals.  That would allow the United States to prosecute Assange, who is an Australian, under American law.
Vladeck cautioned against this approach saying, “to go after WikiLeaks would be to cross a constitutional Rubicon,” especially because there is “not much of a legal distinction” between WikiLeaks and the New York Times.

Charles Tobin, a lawyer and former journalist who counsels media companies, took a hardline against Assange whom he characterized as “a kook” and “anarchist.”  Still, Tobin could not find a way to reconcile a prosecution of Assange and First Amendment protections.  Famous freedom of speech cases including Hustler Magazine v. Falwell, are parallel in Tobin’s mind, “Larry Flint, Julian Assange … there is a kind of paradigm there.”
The parallel between what WikiLeaks does, and what most major news organization’s do as well was also discussed.

Cable News Network’s assistant general counsel Lee Williams explained her company’s procedure for reporting sensitive information.  Williams laid out a series of questions journalists, editors and CNN lawyers consider when they are approached by a source, “What’s the story? . Is the story very much in the public interest? . Is the story even worth the risk of accepting these documents?”  According to Williams, the final decision is made “at the highest level of CNN.”  Even after the decision is made, CNN is wary of handling the documents, “we don’t want to make any copies of these [leaked documents], we want to keep them under lock and key.”  Before CNN runs the story they “seek the [government's] input on what they think should be redacted.

“The last thing we want to do is to put real people in danger or do anything to hurt the government.”

The Obama administration has taken several government employees to trial for allegedly leaking information without authorization.  Most recently, the administration’s prosecution of NSA whistleblower Thomas Drake on 10 charges of espionage collapsed after years of investigation.  Ultimately, Drake pleaded guilty to a single misdemeanor charge.  Questions about how much applicants know about WikiLeaks-obtained information widely disseminated by the media are even making its way into the hiring process.  Vladeck related that persons applying to work for some U.S. security positions are being asked if they have read any of the documents.

Government whistleblowers lack a uniform policy that provides any real assurance that the merits of their plea will be considered and that they will be protected.  “What’s really telling about the U.S. whistleblower regime is that there is no public interest exception,” explained Vladeck.

Tobin, who worked closely with Congress for years on federal reporter shield legislation to protect reporters from divulging their sources, says that WikiLeaks poisoned the well for any discussion of the law.

“Sen. [Dianne] Feinstein didn’t want the pajama blogger-that’s the hypothetical-who was dissing her sister” to qualify for reporter protection.  After the WikiLeaks material was released, the conversation with Feinstein, who now chairs the Senate Select Intelligence Committee, stopped.

“That was overnight.”