Exposure of information vs. exposure to information

The government’s recent declassification of the Vietnam-era Pentagon Papers corrects a 40-year mistake. But the motive may have had more to do with defending a current wrong than righting an old one.

Several months ago, the White House directed federal agencies to warn employees and contractors that viewing classified documents made public via WikiLeaks violated “applicable laws and…policies.”

After it was pointed out that this notice could be equally applied to the Pentagon Papers – long available on public bookshelves and a staple of modern history courses despite their continued “secret” status – the government announced that they would be declassified.

(Most Americans probably didn’t even realize the Pentagon Papers still were officially secret. Until that announcement, people familiar with the case expressed surprise to me that this was so.)

There is a certain irony in the government’s choice of June 13 for the anti-climactic release of the “official” version of the nation’s best-known secret documents.

That was the day in 1971 that the Pentagon Papers – a secret, internal history of the Vietnam War’s early years that belied the official line – entered the public realm via The New York Times.

The disclosures prompted the government to take the extraordinary step of asking the courts to block further publication. Or, as Justice Hugo Black put it in the Supreme Court decision rejecting that request, to “make a shambles of the First Amendment.”

“Prior restraint” of publication is antithetical to the concept of a free press, as the Court had noted 40 years earlier, in the 1931 case Near v. Minnesota.

The Court recognized then that the ability to speak and publish freely without government intervention is central to the notion of a free society and its need to have maximum access to information it needs to govern itself.

That very principle – and nearly those very words – are found in Stars and Stripes’ charter, Department of Defense Directive 5122.11, which mandates that the organization operate in the interest of an informed readership “without news management or censorship.”

That is not to say that anyone at Stars and Stripes, or elsewhere, can say or print anything without consequence. Anyone who publishes, posts or broadcasts irresponsibly can be held to account in any number of ways – legally, financially, politically and socially.

But what the Court said in 1931 and affirmed 40 years later in the Pentagon Papers case is that except for the most urgent and extreme circumstances – like protecting wartime troop movements – government has no rightful role in deciding what can or cannot be published once information is in the hands of the publisher.

Enter WikiLeaks, the anti-secrecy initiative born of technological advance and cultural shift.

Rather than act like a traditional media outlet, which deals directly with sources, then sifts, tests, winnows and shapes their information into an account edited for a particular audience, WikiLeaks acts as a middleman between its shadowy sources and a carousel of media “partners.”

But while the partners control what they themselves publish or omit, WikiLeaks and a host of mirror sites also function in their own right as public portals for raw data to be viewed by anyone.

So, unable to regain custody of its pilfered material and unable to block dissemination, the government has taken a new tack – forbidding people to look at it, including Stars and Stripes journalists, whose very work is about gathering information, not suppressing or avoiding it.

The argument goes like this: As a federal appeals court ruled in a 2009 case involving outed CIA officer Valerie Plame, classified information can be declassified only by government process. Leaking or even publicizing it does not declassify it in the eyes of the law. Federal employees are obligated to protect classified information and may not view it without authorization. Stars and Stripes journalists are employed by the government. Therefore, they must protect and avoid restricted information like anyone else on the federal roll.

Even more troubling, absent a potent legal or political challenge to date, the WikiLeaks policy’s proscriptions are now being extended beyond the ranks of government workers and contractors.

The New York Times reported April 27 that lawyers for Guantanamo prisoners have been told they can lose their required security clearances if they read or discuss classified WikiLeaks documents relating to their clients. Likewise, the paper said, university students have been told they risk prospects for government work if they comment on WikiLeaks documents online.

As a self-serving legal argument intended to protect government prerogatives, the WikiLeaks policy has a certain linear logic. But as a practical matter, as the Pentagon Papers illustrated, it is nonsense. Dangerous nonsense. The information is out there. It cannot simply be wished away.

“When things seem senseless, they usually are,” the noted First Amendment lawyer Floyd Abrams recently told me.

Speaking on the eve of the Pentagon Papers’ declassification, Abrams, who represented The New York Times in the battle over the Pentagon Papers, recalled Justice Felix Frankfurter’s 1949 admonition that “this Court should not be ignorant as judges of what we know as men.”

Abrams recalled haggling with government lawyers in 1971 over their efforts to bar The Times’ publication of certain information that had already been published elsewhere – hence, already in the “public domain” – because it was also contained in the classified Pentagon Papers.

“How can you possibly enter a prior restraint against publication with respect to information which is already public?” Abrams marveled.

“It is one thing to say the mere release of information that is classified does not in and of itself declassify it,” he said. “But it is quite something else to say people shouldn’t read or learn from or take account of information that is in the public sphere.”

Doing so, he said, amounts to “forced ignorance.”

Insisting the Pentagon Papers remain classified during the 40 years they were in wide public circulation was simply petulant. Threatening punishment for merely viewing what is already posted in the digital public square is downright ominous.

In the Plame case, the court noted that a leak is less consequential than formal declassification because a leak can be ignored or denied. Extending that rationale then, exposure to classified information should not be treated, as it now is, as akin to exposure of classified information.

Until WikiLeaks, the emphasis in DoDD 5122.11 was on Stars and Stripes’ “disclosure of classified national security information” that was not already in “the public domain.”

At the least, the Pentagon should return to that standard and lift the warning against Stars and Stripes journalists going about their rightful business of fully and freely gathering information on behalf of their readers – the very people whose service and sacrifice make possible a free press.

This column was originally published in Stars and Stripes on June 17, 2011.

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