General Hayden on Government Secrets and the Press

By Jack Goldsmith
Monday, November 1, 2010, 10:33 AM

General Michael Hayden, former Director of the CIA and the NSA, gave an interesting speech on the media and national security last Friday at the Newseum’s conference last Friday on Criminal Law, National Security, and the First Amendment.  (Hayden’s remarks were sandwiched between great panel discussions on the News Media and National Security and Prosecuting and Defending Cases Involving Classified Information that I highly recommend.)  The thrust of Hayden’s remarks was that the media has an important, First Amendment-protected role to play in reporting on national security matters, but that it often fails in its mission by reporting national security events inaccurately or by revealing information that greatly harms national security in ways that journalists do not appreciate.  Hayden also offered advice to the intelligence community about how to better work with the press.

In the course of this argument Hayden expressed what I think is a typical misconception among national security officials about the role of the press in our constitutional system.

Dean Baquet (then-editor of the Los Angeles Times) and Bill Keller (executive editor of the New York Times) once wrote in justification of their publications of stories about the government’s efforts to track terrorist financing through the SWIFT system.  They said:

We understand that honorable people may disagree with any of these choices — to publish or not to publish.  But making those decisions is the responsibility that falls to editors, a corollary to the great gift of our independence.  It is not a responsibility we take lightly. And it is not one we can surrender to the government.

To which Hayden responded on Friday:

The public has already decided through its elected officials what it wants to know and what it doesn’t want to know.  The president and other members of the executive branch have been authorized by legislation to classify information whose release in their collective judgment would damage national security.

I agree with Hayden that the SWIFT stories did significant harm to national security and were irresponsible acts by the press.  But I don’t think he accurately captures the government’s full attitude toward such disclosures.  Yes, the government has made it a crime for government employees to leak highly classified information.  But most media publications of classified information do not implicate criminal liability for the press because the pertinent laws – especially ones in the original Espionage Act of 1917 – are not drafted clearly enough, or targeted at the press with adequate precision, to survive the scrutiny that the First Amendment demands before holding journalists liable.  There are a few laws, like 18 U.S.C. 798, that criminalize a narrow category of publications (including “communication intelligence”) with a precision that might survive First Amendment scrutiny.  But despite scores of publications over the decades that implicate this law, the government has never enforced it against the press.  In fact, despite steady leaks of sensitive and classified information throughout our nation’s history, especially in the last decade, the government has never prosecuted a member of the media for publishing secret government information.  This pattern reflects many factors, including the First Amendment, the political controversy of prosecuting journalists for publishing secrets, a worry about revealing yet-more more information in a criminal trial, and a culture of restraint in the Justice Department when it comes to the press.  From the media’s perspective, this long custom of impunity for publishing secrets confers a kind of legitimacy, or at least safe harbor, for such publications.  The press is further emboldened by the fact that government officials who complain one day about leaks of classified information are often themselves the next day leaking classified information to serve their purposes.  All of this makes me think that the government has not in fact decided that it doesn’t want the press publishing classified information, as General Hayden suggested.  It is closer to the truth to say that the government has acquiesced in the disclosures of such secrets and thereby conferred a kind of legitimacy on the practice.

PS: Hayden’s speech, which was full of interesting tidbits, said this (23:25), which I did not know: “More renditions were conducted under President Clinton than under President Bush.”